Count me in on Xeni's side on this one, in principle, if not in presentation. I'm increasingly convinced that the "free culture" movement could, and should, be revolutionary in its implications - it's maybe the best thing to hit the left in the last twenty years, if the left will only wake up to it. Which isn't to say that the Soviet riff makes good political sense - but free culture is, and should be revolutionary. In other words, it should be all-American in exactly the same sense as Eugene Debs, Joe Hill and Woodie Guthrie were all-American.

You're out of your mind. If there's one thing Eugene Debs, Joe Hill, and Woody Guthrie had in common, it's that they weren't a bunch of artists playing at foreignness for a little hit of epater le bourgeois. They drew on self-consciously American and patriotic roots for the causes they championed.

There's a sensible argument to be made for emphasizing the "revolutionary" aspects of "free culture," but letting Bill Gates stuff us into the "communist" box is just retarded. Hipster irony is for losers.

News Flash... BoingBoing readership not solely composed of the irony-impaired... MPEG at eleven!

I think I see your point, but it does rely on a few premises that may prove to be false:

1) The majority of people who care about these issues are likely to see one of Xeni's parodies and be so outraged at the Red Menace that they will lobby their representatives to smite the godless CreativeCommunists.

2) The kind of people who are opposed to the Creative Commons are regular BoingBoing readers.

3) The word 'Communism' still has the power to chill people to their very core. Even in Bush II's America, is this still the case? Now, if Bill had compared intellectual property reformers to Liberals then maybe we should start worrying...

The word 'Communism' still has the power to chill people to their very core. Even in Bush II's America, is this still the case? Now, if Bill had compared intellectual property reformers to Liberals then maybe we should start worrying...

And yet, as Groklaw's regular updates on the business world's reporting of the SCO/IBM Linux case demonstrate, this sort of nonsense still gets regularly trotted out. Why do you think the Alexis de Tocqueville Institue gets grants to write their nonsense? It's to create a veneer of respectability for the idea that volunteer efforts competing against for-profit companies are somehow un-American. (This is, of course, why Benjamin Franklin's paid fire departments are still around, crushing the specter haunting our nation, the specter of community involvement.) Why cede that argument, even as a joke?

Why cede that argument, even as a joke?

Umm.. because if things are at the point where someone can't make a joke without their entire viewpoint being hopelessly devalued then they are so far from winning the argument that they may as well quit now?

I dunno. I am typing this in the offices of a cosy liberal NGO in London - are things really that insane, politically, on your side of the pond?

XJ is the reason I stopped reading BoingBoing; I just couldn't take her gobshite any more. That said, I am not sure she's doing more in those two posts you link than poking fun at Gates' blockheaded assertion.

Hi, Patrick! Longtime fan of your blog. Hey, I'm all for wrapping ourselves in american flags, and wholeheartedly support the Patriot Thong Movement for those who prefer to keep such sentiments on the downlow.

Seriously, though -- the BB posts you referenced were an (admittedly flawed) attempt at humor, which -- I'm sure you'd agree -- is a time-honored method for Sticking It To The Man. The notion that people who support copyright reform are "commies" is hilarious, and I think these little bloggable visual jokes are a perfectly appropriate and effective way to point out just how ridiculous that notion is.

And with that, fellow traveler, I thank you and bid you do svidaniya. --XJ

Somewhat offtopic:

This is, of course, why Benjamin Franklin's paid fire departments are still around, crushing the specter haunting our nation, the specter of community involvement.

I dunno about you, but I want professionals hauling my ass out of a burning building. Community fire brigades are wonderful (there's a strong tradition of same in Australia, where I'm from), but they're a supplement to, not a replacement for, the pros.

I'm more worried about the right er, "center" wing of the Democratic party right now than I am about the public. The last thing any movement in need of congressional support can afford right now is to be tagged Something We Have To Throw Over the Side as a Sop To The Red States.

I hope your return means you're feeling better.

Rush Limbaugh: And these communists, and friends i don't use that term lightly, they are out there stealing from American Businesses and what really gets me here is, they admit they're communists! They are proud of it! They are proud to associate themselves with one of the greatest enemies this country ever faced, a movement of the left that was based on the murder of millions of people, and if you think i am being somewhat over the top saying that these people are communists well you can go right here to see their logo, and their descriptions of themselves as communists.

Nope - I'm not out of my mind at all, far as I can tell. If you go back and look at my comment I'm saying that I agree with Xeni in principle and _not_ in presentation, and that I agree with you that the Soviet style presentation doesn't make good political sense. But it looked to me like your original post had two different arguments kind-of tangled up together in there. One is that presenting "free culture" as Soviet kitsch is a bad idea. I agree. The other is that presenting "free culture" as revolutionary is a bad idea. On this, I disagree. I guess what I'm saying is that a bit of leftwing revolutionary fervour seems to this expatriate Irishman to be as American, tasty and wholesome as apple pie. Mind you, as I've said before, my opinions on this are partly your fault anyway - I first started thinking about this stuff after having my mind quietly blown during that breakfast conversation in Toronto.

I'm not so much concerned about the idea that "the word 'Communism' still has the power to chill people to their very core" as I am about capitulating to the fraudulent proposition that our side are the aliens. It seems to be extraordinarily important that we keep spotlighting the fact that overweening IP tyranny is the new, different, foreign thing.

I realize that I risk looking humor-impaired by being so insistent about this, but look, politics is serious business and these stakes are real.

(I do also want to say that I am normally quite the fan of the sometimes-controversial Xeni Jardin.)

Henry: Fair enough. Yes, revolutionary fervor has a fine American pedigree. But it's very difficult to make that connection if we confuse matters by dabbling in Soviet imagery,

The ability of the bad guys to turn our hip, knowing, ironic humor about ourselves into a deadly weapon against us must never be underestimated. I remember when "politically correct" was a joke we told on ourselves.

I guess I have to disagree with you, too, Patrick. I don't have a very well thought-out support for how I feel about this, but I do think that the effect is not what you think it is. I wish I could be more articulate than that -- I just don't think that most people, seeing those images, will respond the way you think they will. Some will.

Patrick, that's a perfectly good argument. Perhaps you'd like this better, then.

http://oxy1.stsland.ru/lenin.jpg

:)

Contrast the BoingBoing parodies of Soviet propaganda with this classic of the genre.

Oy. First off, Bill Gates framing those who are pushing for more realistic IP laws as communists is not new. A few years ago, the BG had attempted to frame the open source operating system Linux (his main competitor for web servers) as "viral".

Second, I think the communist flag parody might actually be helpful in showing the absurdity of BG's frame. Sort of how my hermetic president cartoon pokes holes in the administration's "Criticism encourages our foes" attitude and their attempt to frame dissent as "aiding the enemy".

By itself, however, it does not create a new frame for IP that is progressive. I've contributed to open source projects, and found an interest in the legal aspects of how IP works. I wrote a long, rambling, article about it here:

drafting the gift domain

I wouldn't recommend anyone read through it end to end. It is in serious need of updating. There is some good stuff in it however. One nugget is my attempt to graphically represent the various intelletual property rights that are granted to authors and inventors and how they measure up to the "limit of public good".

limit of public good

yikes! talk about over reaction. the issues at hand are udoubtedly serious and worthy of earnest debate filled with the properly dour faces and gravitas, but c'mon. these things are a goof. an appropriate reaction to an extremely goofy statement. "good politics!? bad politics!?" geez.

One way to reframe gate's statement is this:
Overly protective intellectual property law
is little more than
corporate welfare.

"yikes! talk about over reaction. the issues at hand are udoubtedly serious and worthy of earnest debate filled with the properly dour faces and gravitas, but c'mon. these things are a goof. an appropriate reaction to an extremely goofy statement. 'good politics!? bad politics!?' geez."

Why yes, that is a pretty good job of condensing all the stupidest possible responses into a few lines.

The idea that I think we need "properly dour faces and gravitas" is just silly, and not born out by anything I've said here or anywhere else. The idea that something is immune to criticism if you make the magic hex sign and declare It Was A Joke is dumb coming out of the mouth of a twelve-year-old.

I may be right or wrong on the particulars of this discussion, but I'm not going to apologize to you for being "serious." Not for the first time, I'm reminded of R. A. Lafferty's remark: "The opposite of 'serious' isn't 'funny.' The opposite of both 'serious' and 'funny' is 'sordid.'"

Henry, Xeni: Right idea, wrong revolution. Think Boston Tea Party, or maybe the Gadsden Flag and its ancestors. (Franklin's "Join or Die" cartoon reminds me of how BitTorrent chops up and rejoins files....)

I don't necessarily agree with Patrick's position, but I definitely see his point. While witty and amusing, a "creative commies" flag can all too easily be used against the cause of copyright reform as well as used for it.

However, I like the general copyleft flag idea far too much to abandon it, and think, perhaps, it should be extended instead. I'd like to see a whole set of flags/wallpapers/etc, that use the copyleft symbol in place of the original symbol. For example, I'd love to see a "copyleft & stripes" flag, which would definitely be in keeping with the concept that a relaxed intellectual property climate is an all-American value.

Now I feel all awkward 'n stuff for liking Soviet kitsch before it was cool, and being an open-source programmer shortly after it was cool, but not stopping when it was cool.

Patrick, it seems to me that you're overreacting by construing the open-source movement as necessarily political in nature in the first place. While I suppose it's possible (sweet Jesus, after the past few years I have to admit any idiocy is possible) for open-source to be declared as illegal and/or immoral, I simply have to imagine that this would be one more nail in America's coffin. If we're that g--d---- stupid, as my grandfather would have put it, we deserve Darwin to kick in.

But when companies other than Microsoft see themselves threatened in this way, I think they'll react. So the notion of "political stupidity" really doesn't factor in. And the Commie kitsch is great if you ask me. I'm a sucker for Soviet art. Always have been, always will be. So seeing more of it, associated with something I consider to be expression of the inevitable force of history, well, I go all goose-pimply, tovarishch.

I am sure that it is just coincidence that the first time I tried to look at the boing boing link, Internet Explorer informed me that I had lesnerized (or whatever it says) and it was shutting down in protest. It worked OK the second time.

wow.

thanks for applauding my ability of "condensing all the stupidest possible responses into a few lines." it's no easy task i'll tell you.

no need to apologize for being serious, ever. i agree. but for my part i can say the graphic i created this morning was in fact a lark. the response it's gotten, critical or approving, is fascinating to me. i've never been knee deep in a developing meme until now. it's a sordid business evidently.

hm, on further consideration, I think there is a fatal problem with the communist==copyleft flag satire from a framing point of view.

Satire is fine as long as you're casting the bad guys as bad. The Hermetic President pokes holes in the Administrations attitude that dissent is the same as "aiding the enemy" by showing it for what it is: bald-faced nationalism that could easily lead to facism. So framing Bush as Hitler has it's purpose.

The problem with the "copyleft == communist" satire is that it takes an inherent trait of intellectual ideas (that knowledge is community property) and casts it as evil (communism).

The natural state of intellectual works is that they are public domain.

The constitution allows congress to grant a limited set of rights to Authors and Inventors only to the extent that such a legally created and sanctioned monopoly "furthers the useful arts and sciences".

Taking the natural state of intellectual works (public domain) and casting it into the frame of evil communism and community property is exactly the frame that Microsoft and RIAA and MPAA want: that the natural state of ideas is "property".

The communist flag with the copyleft symbol fails to break the frame set by Gates. Rather it reinforces it.

Microsoft was convicted of anti trust violations during the Clinton administration. But it was dragged out long enough that Bush came into office and Ashcroft decided to drop the case. That Microsoft makes millions of dollars of campaign donations every year and got a political exemption from the law stinks to high heaven.

Corporate Welfare

At first I was confused by this post, I couldn't make out what the issue was, and then what the issue about the issue was. As I understand it, we're talking about how we want to position ourselves. The right has been extremely succesful at branding the left as unamerican, and they have managed to align their agenda with what's best for America.

The work done to broaden intellectual property laws and make them tighter and more restrictive is now being positioned as protecting America, and it's opponents are anti-business commies who hate freedom. A blogger found this position absurd, and in mock made a commie like flag icon and put it on her site. Patrick suggested that this is precisely the wrong reaction, as it will only strengthen the accusations already made.

I know you all already knew this, but for anyone who may have been as ill-informed as I, this is my attempt to save you the work of figuring it out. If I got it wrong, anyone feel free to correct me.

That said, I get it Patrick's point. We need to show that we are the real patriots, that we support a view of IP that actually favors more people trading information, making money, and doing brisk business in a free-marketplace of ideas. Bill Gates is trying to wrangle big government into destroying the free market, with his monopolistic tactics that reek of favoritism from government cronies. The next thing you know, he'll be charging us to think and sending in the government to collect a Microsoft tax on our every email.

I'm going to keep returnign to this discussion until I can figure out how to say the thing that is bothering me, because it is really really important and it has to do with why we're embattled instead of triumphant right now.

I know very well, Patrick, because I've been reading things you've written for a long time, that you have no intention of advocating a cramped, joyless, fearful and tongue-tied opposition. But I do think that the result of being afraid of communism jokes and defiant and ironic humor will be that. Actually, I believe this is one of the two or three things I know for sure. When we're outspoken, and we offend a few people, and we glory in ourselves, we win. When we hedge, and mumble, and worry more about offending than about getting our say, we lose.

Oh, I think I did it. I think this is what I want to say.

Anyway, I think those things are pretty in their own right, and I would like to point out that the esthetic in question was prevalent all over the world at the time, crossing political, cultural, and geographical lines -- not that that has anything to do with the argument, but it seems like it should be said now and then.

I agree, to a point. I think this is probably a not a good time for irony, and this too serious to laugh off. Gates is a powerful man, and them's fightin' words.

I actually liked the "creative commies" images as a goof, but I see Patrick's point.

One could just as easily make the case that centralized control over information (ie, the IP regime that Big Media favors) has echos of communism.

Perhaps someone could gin up some art around that theme.

Maybe a more constructive way for us to look at this is to recognise that we aren't limited to either making fun Bill Gates' remarks or reframing the debate. We can do both and, to be honest, I think we need to do both.

The right have got a lot of mileage out of mocking political correctness, while at the same time depicting it as ideologically unsound and even dangerous. Can't the copyfighters use the same two pronged attack?

I like the flag with the wings.

Sennoma, I haven't had a fire, but the local volunteer EMTs come get me once a year or so, and not only are they good, but one of them can get an IV in my arm in the first try.

I love the creative Commies meme. It makes fun of the Man. Nobody thinks open-source programmers are going to send Polish Army officers to the Gulag, send tanks into Prague, or bug the American Embassy in Moscow. By reveling in it, we demonstrate that this frame has no power over us: cf "Yankee Doodle Dandy".

Making fun of the frame is an excellent way to disable it entirely. Or so I hope. Because I still like Commie kitsch (my wife makes fun of me, but she still took me to the statue museum in Budapest so I could visit my favorite statue after it disappeared from the Hero's Square.) (Disclaimer: I'm a Communist sympathizer, having married one.)

I find good reason to pay attention to both Patrick and Xeni, who may share some common ground. I also believe that this article is relevant:

"Who Owns the Media?" by Simeon Djankov, Caralee McLiesh, Tatiana Nonova, and Andrei Shleifer, Journal of Law and Economics, vol. XLVI (Oct 2003) pp.341-381.

I won't post the 5-sentence abstract unless Patrick agrees that this might be germane to this thread.

Not for the first time, I say: I'm not really worried about the "communist" aspect.

I'm a lot more worried about "our side"'s quick willingness to accept being labelled as alien.

I share Lucy Kemnitzer's belief that "when we're outspoken, and we offend a few people, and we glory in ourselves, we win. When we hedge, and mumble, and worry more about offending than about getting our say, we lose." However, being outspoken and being willing to offend a few people, while necessary, isn't sufficient. Thinking for two or three seconds about who it is we need to convince, and what might work to convince them, is also needed.

Or, we could just exchange t-shirts to tell one another how much cooler than Microsoft we are. That's a plan, I suppose.

With all respect to folks still determined to wrap themselves in the flag - or at least claim, in some way, the patriotic high ground - I have given up on the idea that "our side" is not alien. I do not want to continue in apologizing for what I think, or in finding ways to frame it as harmless to the majority view. I suppose this applies equally to my dislike for strong IP law and my contempt for the values of many social conservatives.

Oh, cripes. Sorry for the fire-related tangent, but here's Steve:

(This is, of course, why Benjamin Franklin's paid fire departments are still around, crushing the specter haunting our nation, the specter of community involvement.)

Um, no. Ben Franklin's brand of fire insurance worked on the principle that if your building displayed a paid-for "fire mark," certain fire companies (which were paid for this service by the insurance company) would try to put out fires on the premises. No fire mark, no service.

Modern fire departments put out any blaze they can reach. The only thing "paid" about 'em is that career firefighters are, mysteriously, paid for their efforts. For sitting around in long on-call shifts, at all hours of the day and night, in all kinds of weather, waiting to hop to it if someone needs help.*

The bastards. Anti-community service provocateurs, the lot of 'em.

And then there's Sennoma:

I dunno about you, but I want professionals hauling my ass out of a burning building. Community fire brigades are wonderful (there's a strong tradition of same in Australia, where I'm from), but they're a supplement to, not a replacement for, the pros.

Look, I know you didn't mean much by this. And I know this crack about "professionals" seems like a pretty glib and obvious thing to say. But the fact is that there really is no such thing as an "amateur" firefighter, at least in the United States-- volunteers and on-calls train to the same standards, and use the same equipment, as the career folks. If someone dressed as a firefighter is pulling your ass out of a burning building, that person has trained for many hundreds if not thousands of hours against the same requirements set down for career fire fighters, even if they're a volunteer.

The vast majority of emergency services personnel in the United States are part-timers, volunteers, and on-calls. According to my class materials, 88% of the fire departments in the U.S. are all-volunteer or mostly volunteer-- and just 6% are entirely composed of career fire fighters. About one-quarter of the million or so currently active U.S. firefighters are career; those folks are also very heavily concentrated in major urban centers.

Even when career fire fighters go on a call, chances are they'll have support nearby (or at hand-- seven different departments responded to a recent building explosion in St. Paul, for example, and half a dozen got together to help out with the hideous cat-hoarding mess reported in Teresa's blog a few months ago) from part-timers. Part-timers drive the engines, maintain the quipment, run the ambulances, haul the patients, man the radios, and man the hoses just as vigorously as careerists do.

So it's a little bit ass-backwards to say "they're a supplement to and not a replacement for the pros." Fact is, in most places, career emergency personnel are a supplement to the volunteers. Fact is, they all train to the same standards, and they are all professionals of a sort, and they are often on a scene side by side.

I start my training as a fire fighter in four days. My class material is on my brain. I don't mean to snap at you, but nowhere in my syllabus does it say that those of us with volunteer service as an eventual goal get to slack off.

---

*Asterisk! Part-timers and on-calls tend to get some measure of compensation on an hour-by-hour basis, when responding to calls and for certain compulsory training events. This varies from location to location. In the city I was living in, it was $8.88 an hour for on-call firefighters and paramedics. Note that that's not money for sitting around waiting for one's pager to go off; that's what you start to accrue only when you run out the door and zip over to the station to do some work.

"Thinking for two or three seconds about who it is we need to convince, and what might work to convince them, is also needed."

That's also being done. There are more serious, reasoned articles on the subject. If what I've been calling "information socialism" for decades has yet to see its Adam Smith, this may be because it information socialism is still very new, and Smith was after all writing a century or two after the birth of industrial capitalism.

Turning to persuasion, it seems to me that what won the case for industrialism capitalism finally was not so much persuasion. Rather: (1) industrial production was enormously more efficient than craft production, and (2) industrial production could turn out better weapons, faster and cheaper. Industrial capitalism persuaded, finally, not by rhetoric but by power. Indeed, it could not and still has not won the rhetorical war. And so I think it will be with information socialism.

(I would be most unhappy if this is taken as advocacy of cyberwar. As I hope most of you know, I hate war.)

Seems to me that if the Creative Commons movement is being attacked as communist, then the imagery they want to wrap themselves in is that of the Samizdat writers in the USSR - uncopyrighted, unofficial, no named owner, and risking their freedom to take on the oppressor.

It's funny, in the whole copyleft=communism debate there's been a lot of 'CC is communist," "No, extreme copyright is communist!" But the fact is that neither are particularily communistic. Many of copyleft's advocates have an anti-corporate agenda, but many others believe in copyright reform because they support the rights of entrepreneurs to enter the market with new products without the say-so of the incumbents; that's not communist, it's practically libertarian.

But neither is copyright maximalism communist (in the USSR, the state held all the copyright and made certain works available without compensating their authors, and suppressed other works by claiming the exclusive right to reproduce them).

Copyright maximalism is *feudal* -- it is the descendant of the old system where the Roi would grant a favoured courtier the exlusive right to produce silver thread, or silk ribbons, or pipe organs.

It's the specific evil that the US Constitution's framers had in mind when they wrote the "limited times" and "to promote the useful arts and sciences" language into the Copyright Clause.

I think one of the reasons the neo-cons won is that they are deadly serious (in all senses of the word deadly) and frame all their arguments in absolutes. "Commies" is an absolute. And so to, for them, "Democracy." And "Faith."

Whereas we are serious, but not deadly, and also seriously playful and seriously able to laugh at ourselves. Which mitigates our ability to be as deadly as the other side.

However, that being said, I also have to point out that I hate getting aligned with Bill Gates on copyright issues. But as a creator, I am constantly reminding folks that I have to eat, pay mortgages, and leave something to the children and grandkids, too. My stuff AIN'T free. (Another one of my poems has just turned up sans copyright info on a website--this one for scrapbookers! So I may be a tad cranky this early morning.)

Hm, just went back to the original article that start this whole thing. Communism is the least of the problem. First of all, the guy doing the interview is corporate shill or a framing idiot.

> Q: In recent years, there's been a lot of
> people clamoring to reform and restrict
> intellectual-property rights.

Using the word "rights" for most readers will probably invoke the idea of "human rights" not "all rights reserved", therefore, any "attempt to restrict IP rights" is equivalent to restricting "human rights".

And "clamoring" makes it sound like we're a bunch of rabble rousers with nothing but trouble. I'm not "clamoring", I'm reasoning.

A better way to frame the question might be:

Q: More and more people have been demanding that intellectual property laws be rolled back to their original intent. The founding fathers made the first copyright last 30 years, now it lasts 130. The Supreme Court has continually expanded Fair Use over the last 200 years, but with the "anti-circumention" clause of the DMCA, Fair Use can be locked out by technological measures. End User License Agreements are being used to foist additional restrictions above and beyond what copyright extends to the author. Software couldn't be patented until 1980's and now software patents are being used to monopolize the most mundane thing as "one-click" shopping with a mouse and a webbrowser. What say you on this, Mr. Gates?

> A: There are some new modern-day sort
> of communists who want to get rid of the
> incentive for musicians and moviemakers and
> software makers under various guises. They
> don't think that those incentives should exist.

That's the perfect frame for BG. Lump all Intellectual Property reformists into the "they don't want copyright at all" category.

"Communists" is not the fram doing the damage here, its that we're being lumped into the "they don't want any copyright laws at all" group of crazies.

"communists" is just a distraction to bait IP reformists to attack the "red menace" label and ignore his real frame. IP law has its benefits and I'm not for wiping it out completely. It's just that it's become the new version of the Railroad monopolies around 1900. Too much power has been legislated to a few people.

I generally find BoingBoing to be a good source of interesting links.... but sometimes, I want to reach into the screen and throttle Cory Doctorow for overreacting.

Jane, the extreme monopolistic Disney-style modern copyright being pushed by large corporations doesn't assure your right to benefit from your work -- the old-fashioned copyrught was supposed to do that. This new, radically different, construction of copyright does a raft of unpleasant things.

One, it consolidates yet more money and power into yet fewer hands -- because these few hands inherit copyright from "their" artists, if they don't wrest it from them while they're living. Another, once an artist has died, it is very likely that works will die which once would have been preserved by reprinting by enthusiasts, or which new modern technology has given a chance to be preserved in ways that they haven't before(like Schwambrania*, or What is to be done? -- either of the books by that name -- or the records of Waide Mainer and His Skillet Lickers or Cow Cow Harris or the films of Ub Iwerks) -- because the only people who are allowed to reprint are people who have no interest in preserving, only in getting out timely, highly profitable works.

Another thing it does is it shackles scholars, artists, reviewers -- because "fair use" has just about gone out the window. Even in the scientific fields, where quotation is absolutely necesary, people have been served notice that they have to pay for the use of even a sentence. Scholars aren't, in the new regime, allowed to quote stanzas. Nor are reviewers.

And dog help you if you're an artist who wants to reference something in a story, or use an image in the corner of a painting. This is how absurd it is: the administration of Fallingwater asked a Sims fan to abandon a project of reproducing some of the works of Frank Lloyd Wright in false-perspective 256-color 300-pixel wide pictures to freely share with people for use in computerized doll houses. In the name of protecting their copyright.

Making a living through copyright doesn't mean we need the current form of copyright. Me, I'm a copyright conservative: I think the Founders original notion was pretty good, and I would happily go back to it if that was the only alternative.

I think the copyright debate should be framed in two terms: Short copyrights are conservative and American; longer copyrights are radical and greedy. Being able to choose your own copyright license is a matter of liberty.

I agree with Patrick on this issue. The commie-artists flags/icons are not funny, imo.

The only truth behind the "commie" frame Gates is invoking is that he is trying to be an imperial Tsar here; to GWB's King George.

I agree with Cory Doctorow, historically and legally. I agree with mayakda's historical analogy on Bill Gate$. I agree with Will Shetterly very much that "Being able to choose your own copyright license is a matter of liberty." I analogize that to Timothy Leary's statement that being able to choose your state of consciousness is the most basic matter of liberty; in this case, the issue devolves on the interface between your consciousness and that of your readers. I agree with Lucy Kemnitzer that "it shackles scholars, artists, reviewers -- because 'fair use' has just about gone out the window. Even in the scientific fields, where quotation is absolutely necesary, people have been served notice that they have to pay for the use of even a sentence. Scholars aren't, in the new regime, allowed to quote stanzas. Nor are reviewers," although the border between what can and cannot be cited in a review or scholarly paper (as a function of length) is somewhat fuzzier than the bright line she suggests. I thank Patrick for moderating this extremely important thread, which goes to the very heart of what scholars, authors, scientists, and hyperpublishers do as a way of life.

Um, no. Ben Franklin's brand of fire insurance worked on the principle that if your building displayed a paid-for "fire mark," certain fire companies (which were paid for this service by the insurance company) would try to put out fires on the premises. No fire mark, no service.

Right, which is the point I was trying to make, thus the oppositional of community involvement (by which I meant both volunteer F.D.s and the modern professional model). "Paid fire fighters" was not the way to phrase it, however. Bad humor on my part, but I think bad humor leading to potential misunderstanding

This discussion reminds me of the people at Downhill Battle, who I think I generally agree with but whose rhetoric I find dangerously bad; their whole "let's blow up the RIAA" stance is dandy from the point of view of someone who would pay to hear Shellac put "The Problem with Music" to music but seems very unlikely to convince the vast number of people who are ignorant of the argument altogether; Jenny Toomey's the Future of Music Coalition doesn't have quite the same policy goals, but I think stating your question as "how can fix the system while making sure musicians can still earn a living?" is more likely to get results. Nobody is sympathetic to record executives, but nobody likes college kids downloading Ludacris singles either. Such is life.

Not to delve too deeply into Boing Boing Kremlinology, but I think the sites ongoing discussion of "This Land is My Land" copyright last year would have been a useful piece of meme-chucking: those grasping bastards are trying to put the screws to some poor schmuck animator, even though Woody Guthrie explicitly invited them to! Seize on the tactics used by the people pushing tort reform -- where there are real abuses, inflate them mercilessly, turn them into jokes, and make sure everyone knows about them. (Doing this with the RIAA's suit against 14-year-olds and computer illiterate grandmothers would work, I think.) When there are real substantive questions where the opposition has a point, steer them back to the caricature you've set up in step one. At no point has the tort reform lobby made amusing drawings of themselves as sinister puppetmasters pulling the strings of the Bush administration while killing off children and pets with lousy products, even though I'm sure you can find some rhetoric out there that defines them as such.

(Sorry for being longwinded, Patrick.)

T-shirts with ironic communist iconography have been common for years. I own & wear several of them. Having one with the CC logo on it isn't going to make anyone think for a second that CC people are actually communists. It's an in-joke.

Jacob: When you make an in joke, those who are out group aren't going to get it. Thats the whole point. They are instead going to be interpreting it through their own filters, and in this case, one of those filters is that that they hate you, and want everyone else to do likewise.

And wrt the communist iconagraphy, I know for a certain fact that their are people out there who will interpret it as revelatory of your true nature and motives and never, ever let it go. The phrase "piles of skulls" will rapidly and begin to figure in your life.

As far as ironic t-shirts goes, I'd like one that says "Hipster irony is for losers." Would people perceive it as ironic, do you think?

I had a more serious comment but it seems so tiresome now. Look: positioning CC or copyleft as an un-American (for that's the only important definition of "communism" in the public mind) revolutionary movement risks branding it as, well, un-American, and revolutionary. It's neither. So stop.

Oh, I forgot to say: I don't know where Planet BoingBoing is, but I'm fairly certain that I'm not cool enough to go, and if I did go, it would profoundly frighten me.

I must add that I love the look of the copyleft symbol with wings. Put that on a blue, green, or black background, and you've got a great bit of design that only the people you'll never reach would object to.

Seriously suggesting that people should limit what kind of in-joke T-shirts they wear because someone, somewhere might recognize the Creative Commons logo AND have a virulent and insane hatred of communism AND also have some influence on intellectual property law is stupid. And I say that with the utmost respect for pnh.

And I've worn my commie-esque T-shirts with not more than a laugh from others; I'm in the Bay Area, but so what? Should we be limiting our *clothing choices* to what might possibly offend someone, somewhere in the US?

I mean, I get the framing thing, I get the not-accidentally-associating-positive-ideas-with-negative-ones thing, but this is ridiculously petty.

Bad humor on my part, but I think bad humor leading to potential misunderstanding

Gotcha, Steve. No problem.

On one level, this is another version of the "Moral Fiction" panel we used to have at every 4th St. People who are doing art ought to be aware of the political/moral consequences of a given artwork.

If you're writing a book, which takes months or years, you have to be pretty naive/dense/unaware, if the notion of "how might this change the way people think", never enters your head. On the other hand, if you mull over every bit of repartee at the dinner table you're unlikely to be much of a conversationalist, and at least for me, trying to do that would destroy the "in the moment" enjoyment, which is most of the point of dinner conversation.

The people making the joke were in dinner conversation mode, and are at least somewhat rightly annoyed at being jerked into creating "ART" mode. On the other hand since it's on the web everyone can see it, forever. So worrying about the consequences isn't silly either. There has got to be a middle ground between looking over your shoulder all the time and playing into the hands of the enemy.

And mayakda, I don't think Patrick ever said the image wasn't funny. He said it wasn't wise. In fact, the funnier it is, the less wise it is.

Oh, and Alex Cohen, if you're not looking at BoingBoing, you are really missing something. Not everything's to my taste, but I see more neat stuff there than anywhere else on the web. Who doesn't love logic gates made out of lego? or flocks of colored mylar balloons mapping out the electromagnetic fields in the sky?

"But the fact is that neither [strong copyrights nor creative commons] are particularily communistic"

By definition, I'd think creative commons, based on sharing, at least might be communistic, while strong copyright, based on private property, is by definition not. I do wish more people would pay attention to definitions, here. I do, however, like your observation that the Framers idea of copyright was in fact a liberalization.

Ms. Yolen, Bill Gates is not on your side; rather he envisions a world in which most copyrights are held by Microsoft, and most art is work for hire. Consider also that copyrights in fact protect publishers, and what they offer to artists varies depending on the work and the medium; copyrights in music do little to protect the rights of artists.

As far as that red flag with the Copyleft symbol goes, it's the first I've ever heard of there being a copyleft symbol. Without the explanation, I'd have looked blank.

That may be what makes the flag a bad idea. Do enough people realise what the symbols mean.

On the other hand, the convention IP symbols for copyright and trademark and the rest would combine will with the symbolism of state communism. It would raide the image of the (godless) evil (corporate) empire, in which the powerful ruthlessly exploit the masses under the guise of some illusory doctrine of liberty.

If you're attacking, subvert the enemy's symbolism, not your own.

And my recollection of history is that America's boom as an industrial and commercial nation mostly came when the attitude of the US legal system to other countty's IP laws was more than a trifle cavalier.

Martin wrote:
> The people making the joke were in dinner
> conversation mode, and are at least somewhat
> rightly annoyed at being jerked into
> creating "ART" mode.

Personally, I'm not telling anyone its time to make "art". It's clear that the person behind the commie-artwork is sympathetic to IP reform. So am I.

But since I'm in a "dinner conversation" about IP law, why not take the oportunity to look at it and see why it does or does not work? If posting commie-kitsch is conversation, why can't this be considered part of teh conversation?

I don't understand why talking about it is such a fundamentally different conversation, unless "dinner conversation" requires no disagreements.

Did the commie-kitsch change anyone's mind about IP? probably not. Did it get people talking about IP to the point that it might change someone's mind? maybe. It's definitely got me to thinking about rewriting "Drafting the Gift Domain" with some new ideas.

It's part of the evolution of ideas, the chain of thoughts, in a series of threads and posts of a public conversation. So is this.

Scott Lynch: thanks for your reply. I stand corrected.

I was making a distinction between volunteer and paid firefighters that clearly doesn't exist in the US and, on reflection, almost certainly doesn't exist in Australia either. Or anywhere: you just can't *be* a firefighter on an "amateur" basis; no one would let you near the equipment or a fire unless you met the same requirements as the "pros". This is kind of a no-brainer really, which shows you how much thought went into my comment.

I apologize for any offence my ill-considered remarks may have caused.

/off-topic

All-American copyleft flag.

Malignant alien IP tyranny flag.

(I'm not as happy with the second one...)

What we need is for someone to figure out how to do the MPAA and RIAA as a takeoff on GOSPLAN.

Also: All-American copyleft T-shirt (etc.).

Er... and now the permissions are correct. Sorry.

All-American copyleft flag.

Bravo, David! Now what you need is a nice recording of the national anthem if the Mickey Mouse Protection Act of 1812 had existed.

I think the All-American copyleft flag might look better if it were derived more obviously from the Bennington ("'76") Flag. Perhaps a simple replacement of the "'76" with a copyleft symbol, leaving the thirteen stars in place.

Or perhaps the circle of stars "'76" flag, with a copyleft symbol inside the circle.

If we're going to stick with the communist iconography, we should just go all the way and call ourselves the Mensheviks. That should do wonders for morale.

I'd like to speak ex cathedra, bringing to bear my multiple years of experience as a magazine columnist covering the free software movement and as a full-time freelance writer who lives or dies by what he gets paid for the IP he creates, but I can already smell the rotten cabbages y'all are queueing up to throw at me, so I won't do that. Instead, I'm going to start with the executive summary, then explain my reasoning.

Executive summmary: Patrick is absolutely correct.

Longer version: The one thing that all those years covering free software taught me is that we are our own worst enemies. (I cite RMS and Eric Raymond as evidence. If these are the best spokesmen we can muster, we've got a problem.)

Talking about the free software/open source revolution backfires because ...

Most people get antsy and frightened when they hear the word "revolution". For good reason -- to them, a revolution means mobs on the streets, troops firing on crowds, looting, and secret police in the night. Or it means the entire industry you work in wakes up one morning to find it's obsolete and you're on the scrap-heap with no skills that'll get you a job any higher than filling shelves at Wal-Mart.

Most people are also suspicious (have been taught to be suspicious) of free software, because it sounds too good to be true, after decades of subtle propaganda put out by an industry which basically wouldn't exist if people stopped believing it was necessary. (Repeat after me: "there ain't no such thing as a free lunch".)

When you start portraying yourselves as revolutionaries, you can expect massive push-back from the base who have been trained to assume that revolution is bad for them. And when your spokesmen look like wild mountain men with halitosis, you have an image problem. (What is to be done? Answers on the back of an envelope after the lecture, please ...)

Still, free software isn't what we're here for. So, getting back to the topic of the creative commons and copyright:

I could care less about copyright. What I care about, like Jane Yolen, is being paid. I don't much care whether the money comes in the form of royalties, a salary, or an ex gratia grant from some government agency tasked with fostering creativity by dropping money on the heads of writers who produce what people want to read: all I care about is the effect, not the mechanism.

The current copyright regime sucks (both the US one and its international cognate, as imposed via WIPO). I have absolutely no interest in retaining copyright 70 or 90 years after I'm dead; neither I nor any of my first-degree relatives will be the beneficiaries of it and in the event I have grandchildren I wouldn't want them to be living as rentiers anyway. All I want is to be paid and for people to read my books. This copyright regime doesn't serve the interests of creative individuals such as authors or composers or artists. It serves the interest of creative organizations who work on projects too big to succeed unless they can coordinate a team of creators. And it also serves the interests of any parasites who can interpose themselves between the public and the creators, and that is where the MPAA and RIAA and their friends like BMI and ASCAP slither into the frame.

These organizations have oodles of money to lobby and campaign with. They do not have our best interests at heart; in fact, they'd love to reduce all creative work to the level of work-for-hire (while owning the copyright themselves). Creating nothing themselves, they rely on perverting the efforts of others. Letting them paint us as wild-eyed radicals or foreign insurgents or hairy hippies or revolutionaries serves their purposes well, and we'd be idiots to take the poisoned bait. Patrick is dead right: while I appreciate Xeni's artwork as an ironic comment, it will backfire if deployed outside the core community.

We need respectable looking spokespeople, and we need to refrain from undermining them in public. Cory and Lawrence Lessig are a big step forward over the free software folks in socialization and knowledge of how to use a toothbrush, but we're up against folks who are hired for the sole purpose of looking good in public. And the court of public opinion is where this argument is going to be won or lost. Please let's not undermine our own campaign to be taken seriously before we get started?

Instead, we need to take the fight to the enemy. Paint them as copyright thieves, stealing the bread from the mouths of writers' and musicians' starving children. Paint them as copyright fascists, preventing you, the listener, from copying your CD's that you paid for onto your iPod. Paint them as the corporate blackmailers they are, threatening 12-year-olds with jail time.

But don't, please, let them portray us as elitist weirdos, or we've lost.

Charlie wrote: "I have absolutely no interest in retaining copyright 70 or 90 years after I'm dead; neither I nor any of my first-degree relatives will be the beneficiaries of it and in the event I have grandchildren I wouldn't want them to be living as rentiers anyway. All I want is to be paid and for people to read my books."

I agree I want to be paid in my lifetime, too, Charlie. But I am 65 and have children and grandchildren and want to--in effect--leave the family farm to them. Partially to supplement their meager incomes (they are writers, musicians, photographers after all!) and partially because Moms/Grandmoms want to give them something to be remembered by.

But also (for the shortish term) to have someone who will TEND that farm with dedication and understanding. I don't want MGM or Gates or Nickolodeon to seize my stories and make gadzillions off them after I am dead with no recompense to my heirs. If the Authors and Artists don't have any say in what happens to their work after they are gone, no legal voice, then the Bill Gates and their monied ilk get it all.

Jane

Sennoma wrote:

I apologize for any offence my ill-considered remarks may have caused.

No harm done. I can be more thoughtless than you with one hand tied behind my back and a broken keyboard, so don't worry about it. :)

I think something could blow up in my face if I said too much about the parasites between the creator and the public, but the music and movie businesses seem to be infested in ways that are less apparent in the area of books.

And it's music and movies, as digital media, which seem to be driving the whole sorry mess. Self-publishing in the book world is tainted by the vanity-press slime, but I don't hear anyone thinking that only big publishers can sell non-pirated books.

Look at movies and music, and the image is being created that nothing not from the big guys can ever be non-pirated. Even though it is easier than ever to record and duplicate an album. (Assuming you can play the instruments.)

Movies are still hard. They're bigger and more complicated and need a lot of people to work together. But the basic tech, such as digital video and the editing, is getting down to consumer level. Distribution is a bigger problem than for music.

It looks as if Copyright is being used to maintain near-monopolies on distribution. And the creative people are the last thing the RIAA and MPAA are thinking about.

Charlie Stross, my take on a reasonable maximum copyright period is life of the artist, plus five years. That's long enough to help the heirs immediately after your death and to ensure that no one decides to kill you to make a movie of your work more cheaply.

I do think you should have the option of shorter copyright periods.

Jane, an artist's heirs inevitably get three benefits: the artist's name, a life in the artist's family, and the investments the artist made while the work was under copyright. I have serious doubts about giving them more. I look at Professional Heirs out there like Christopher Tolkien and Majel Roddenberry, and I am not impressed and not convinced that's a good thing to do to a child you love.

A quote from an early 20th century Anglican church composer:

"Barabbas was a publisher." - T. Tertius Noble

To chime in with and gloss on Charlie Stross, another problem with posing as a revolution is that it places the burden of proof on you. "We're going to radically change things," you're saying, "and when we're done, we'll all eat strawberries and cream every day."

But most people don't want to change, so you're left with an enormous burden of proof.

The problem with this formulation for IP is that it is precisely the maximalists who are pushing for radical - aye, revolutionary - change. The burden of proof ought to be on them.

Here's the framing I'd suggest: We're conservatives. We want to turn the clock back before the 1970s, back to a time when good music and good literature were getting created (just like now), but without those pesky (dare I say frivolous?) IP-infringement lawsuits.

There is political wisdom in what Patrick has said here, and the thoughful agreement by Charles Stross underlies how extensive is the community of those who can agree.

As something of a first Amendment absolutist, I feel that the most insidious form of censorship is self-censorship. But sometimes that is the prudent path, for tactical and strategic reasons.

The Charles Stross comment on spokesmen is also valuable. With all due respect to Mr. Stallman and Mr. Raymond, whom I have known for quite a long time, an enthusistic spokesman with a message that boomerangs does not advance our common cause. I'm at the last day of a 3-day conference at Caltech: "Engineering a DNA World" and the plenary session on DNA Ethics had essentially unanimous agreement between keynote speakers that: (1) we must use language which is clear and consistent with a wider community, else we are merely alone in a room thinking that we're clever; (2) we must have good spokespersons, else not speak to The Press at all (they did not think that Eric Drexler and Bill Joy have been useful in recent years in explaining Nanatotechnology to laypersons); (3) We must go to kindred communities of professionals, respectfully, speaking their language, and ask them "what problems do you have with which we might be able to help you?"

I think that these same sociological principles apply to the intellectual property debate. Do we want our work effectively distributed, and to be fairly compensated for our work, to the benefit of our families and our society, or do we want to just be alone online and congratulating ourselves on how cute we are?

Will--we have had this disagreement before.

I'd like you to make that same argument to ANYONE with a family farm, a small family business, a family shop etc. Tell them that within five years of their mother/father's death, they will lose all rights to the business. Five years--and a stranger with money to spend on it (but not to give to you), will take over your farm or your family shop, whether you want to give it up or not. Tell them that the person who takes it over can then do anything they want to it--make it into a brothel or a place to launder money or a sweatshop or simply sell it to a big company that will build on the property without regard to its history.

(You can tell I get all fired up over this. My metaphors are hopping all over the damn place.)

Jane

Jane: you're right, of course. Will: you're right too.

The problem with unreasonable post-mortem copyright extensions is that they harm the public commonweal, while rapid rights reversion to the public domain harms private heirs. I'm trying to remember where I read the figures for works of literature that go out of print after their creator's death -- I think it was something like 95% of books, within 2-3 years -- and fail to be reprinted subsequently.

This doesn't help anyone: not authors' heirs, nor the reading public. So we need to find some way of striking a balance, don't we?

Assuming we don't want to ditch the whole idea of copyright (which would be really difficult to do, at this point), how's this for a proposal:

Copyright on an author's or artist's work should remain in force for their life plus ten years. At the end of that ten year period, the heirs to the literary/artistic estate should be able to petition for another ten year extension, on all the artist's copyrights, at minimal cost. (Ideally a simple registered letter to an appropriate library of record should be sufficient for the purpose.) One letter, one ten year extension, renewable as long as the heirs continue to express an interest in the creator's works.

Such a system would, I believe, get around the problem of orphan works that cannot be reprinted because no rights owner can be located, while allowing rights owners to continue to benefit from works of commercial utility. It doesn't suffer from the drawback of Lawrence Lessig's proposal, which got so many SFWAns up in arms by implicitly taxing creators on the number of copyright works they maintain (thus penalizing short story writers while benefiting of movie studios). It only kicks in after death, and the sole purpose is to weed out the dead wood.

Comments?

Charlie's screed pops up a symbolism that might work: RIAA, MPAA, etc., are unions, as that term is used by the right: greedy, corrupt, stomping on individual liberties. (Can you tell I've just seen the reprinted On the Waterfront? Fascinating how many more levels it has 50 years later, starting with a reviewer's comment that Kazan probably wanted a stoolie hero after having stooled to HUAC.) That's the wrong term to use, because unions are still needed; but it suggests a way to turn the tables.

My first reaction to his summary was "...he wants us to hire suits!" (Or worse, turn into them.) But two seconds later I remembered "Brown Shoes", which argues exactly the same point with all the love and clarity Sturgeon could muster. And that leads to "Clean for Gene!" (which I remember only in retrospect -- it wasn't until the deaths at Kent State that I started to pay attention -- but which now looks like it could have saved the US a lot of trouble (by driving Johnson out of office) if Daley and the ]SDS[ between them hadn't made the Democrats once again look like the party of Rum, Romanism, and Rebellion).

What it boils down to is that frightened people won't look to reason (let alone cleverness or laughter); they'll look to the most effective-seeming savior -- sometimes even a savior for the next life (cf What's Wrong with Kansas(?)) if they've given up on this one. Dealing with them is a sort of inverse of diplomacy (defined as the art of saying "Nice Doggy!" while looking for a larger stick).

Alex: can we cast our version of "copyright reform" in the same terms as "tort reform" -- that what the corporations want is costing the rest of us money? (As in the semi-mythical cases claimed by the right, it's also costing service alternatives, but that's a harder sell, per the above and the desire for conformity: too many people \love/ loving \s\o\e\h\s\ \d\l\o the same that everyone else loves.)

Charlie's response to the Will/Jane split looks good (which probably means I'm overlooking something). (But not that Will's argument holds up extremes as examples, or that Jane is addressing art as well as economics, which entangles two sets of parameters.) I \generally/ feel that people should not be rentiers (and admit that I'm not on solid ground here, considering that some of my retirement support is an inheritance) -- but that's another argument that has been turned over by the Right: consider the number of people who believe they'd be affected by inheritance taxes, reflecting a similar level of disconnection from reality as the number of people who still believe in Saddam's WMD.

Jane, I'm always sorry when I hop your metaphors. Whenever the conversation arises while we're both in the room, we can state positions without feeling any need to convince the other, honest. I do understand that when kids and grandkids are as cute as yours, you want to give 'em everything you've got. But because I want to understand your position better, I have a question: if stories are the same as the family farm, should they be subject to inheritance taxes, and if so, how do you value them?

Charlie, that proposal sounds reasonable to me. I may be a copyright conservative, but I'm not an absolutist. But I would like that to be the most extreme option. If I decide to put my work in the public domain, I don't think someone with a family connection should be able to jerk it out again.

Hm. I'm not convinced that copyright should exist at all after the creator's death. It's there to provide an incentive to creators, right? How many creators keep creating after they die?

Avram: Are you saying that direct payment to the artist is the only form of incentive? Jane holds that creating works that her heirs can inherit is something she wants and values. I would say it is arguable that the value she finds in inheritability is part of her incentive to create.

Avram: Tupac Shakur has now released more albums post-mortem than pre-. Also, a certain author with the initials L R H.

Will--are you really that naive? Of course my works are subject to inheritance tax.(So are yours.) In fact, we have taken out a rather large insurance policy so the kids don't go broke once the Feds make an assessment of what my property will be worth ten years after my death . Because for at least ten years, the Feds can demonstrably claim that the various stories, poems, novels, essays will keep earning money and they will look at past success times 10, which of course is not useful since once I die, two thirds of the income stream dries right up. (One third being new writing, one third being lectures and teaching, one third being royalties and resales.)

So this is not an argument for argument's sake on the money. And it's certainly an important argument for me on the art side as well. In fact, my daughter is now my full time assistant so she knows everything about my business. She knows what I will allow and won't.

Not all writers make a living from their writing, and perhaps for many of them this is a moot point. But not for me. My little family farm is prosperous. My kids are all in the family business. And I suppose I take all this rather personally.

So I should shut up now.

Shut up, Jane.

Jane

Jane

I'm saying that after Jane's gone, she probably won't be doing much writing. I'm saying that the purpose of copyright is not to create sinecures for the author's heirs. I'm saying that people found ways to provide for their heirs long before copyright was invented, and would continue to do so if it were abolished or modified to end with (or even before) author's death.

I'm saying that the lives of most modern fantasy writers would not be easier if, say, Grimm's fairy tales and the Child ballads and the Matter of Britain were still under copyright.

I'm saying that copyright in a creative work is not a family farm, or a small business. It is copyright is a creative work. It is a form of monopoly, and it therefore has inherent coercive and anti-competitive aspects to it.

I'm saying that the world would be a (slightly) better place if anybody who wanted to could set work in, or draw upon, Middle Earth or Narnia or Orwell's Oceana rather than just the people who get the nod from the heirs.

In an ideal world -- one where I was world dictator -- I wouldn't simply tinker with copyright, or even abolish it outright: I'd go a whole lot further, and demand a complete re-think of the entire concept of intellectual property. IP is, in my opinion, a contradiction in terms: if I have an idea and I give it to you, I still have the same idea lodged in my head, I haven't somehow erased my awareness of it. Thus, any legal system which treats information the same way it treats tangible assets has a fundamental error at its heart.

(NB: to start my complete rethink I'd have to commission a panel of the worlds smartest philosophers to go back to basics and come up with a "common sense" definition of creativity. This would probably take some time. When I said "rethink", I wasn't talking about tinkering with the trappings ...)

But as I'm not world dictator so you can sleep soundly in your beds, knowing that the current broken system will continue to lumber and creak along, and the Mouse will wax fat upon us.

Jane, I am that naive, and I appreciate your answer. I don't have a clue how the feds handle the inheritance of stories. I want mine in the public domain when I die, if not sooner, though I always thought it was kind of charming (and a very sad commentary on our economic system) that a kid's hospital benefits from Barrie's and the NAACP benefits from Dorothy Parker's.

Avram, I agree with you, but I don't think that's the way to win. I'd be content with copyright that lasted 28 years, as it was first conceived. I'm very admiring of the Creative Commons licensing. But many professional writers are terrified of our economic system, and they see strong copyright as the only way to keep their families out of the poorhouse after they die. If you want a lot of prosperous authors on board, I think you have to assure them that even though they won't be guaranteed health care or social security, they can choose to have a five or ten year grace period while copyright helps their heirs make new lives. And though I say it 99.99% in jest, I don't like thinking that if I had a breakout book, some studio could rush the movie into production if I happened to have a traffic accident on a rainy night.

I think the family farm analogy -- Jane Yolen made it here, but I've heard it from others too, notably Mary Gentle on rec.arts.sf.composition -- is a false one.

A farm -- unlike, under the present system, a copyright -- isn't a magic source of money. The kids who inherit the farm have to put some work into it; in fact, they have to put exactly the same work into it that their parents did, in order to make the same living. They can't just sit back and watch the money roll in. (Well, they can if the farm is profitable enough that they can afford to employ farmhands instead of working it themselves, but of course the parents were presumably in the same position, so it stops being a relevant analogy.)

In the absence of posthumous copyright, the writer's kids would be in the same position as the farmer's kids. They would inherit whatever property their parents owned, and they would be free, if they have the desire and talent, to make the same amount of money in the same business. The fact that there's a connection between the property and the business in the farmer's case, but not in the writer's, is a red herring.

Writers who want their kids to be able to make a living from their copyrights after they pass on are really asking that their kids be given an easier life than they had (and than the farmer's kids will). Which is an entirely understandable thing for parents to wish for their children, but not, I submit, a sensible basis for law.

Will Shetterly: "If you want a lot of prosperous authors on board, I think you have to assure them that even though they won't be guaranteed health care or social security, they can choose to have a five or ten year grace period while copyright helps their heirs make new lives."

Alternatively, of course, you could consider guaranteeing them health care and social security. Like, you know, every other country in the western world.

Why, yes, the NeoCons (for lack of a better descriptor) are trying to convince us of the truth of their belief that there is (or ought to be) no such thing as common (or community) property. Yosemite, National Forests, oil & mineral reserves, the ideas and stories that are in the hearts of many of us -- these should all belong to private individuals, to be used for their personal monetary profit. We have paid very little money (though some, and admittedly sometimes not enough) to the giants on whose shoulders we stand, and they paid little or nothing to those on whose shoulders they stood, all the way down. I don't think this system should be changed.

I just wrote a rather wordy thingamajig about exactly how intellectual property is different from traditional property, and it hit me, that right there is the biggest problem free culture people face, trying to explain this to people. The whole idea is really weird. And, if you look at it from the standpoint of someone used to physical property (i.e. basically everyone), deeply unnatural. "Wait a minute," they say. "You mean to tell me that you can duplicate the same thing an infinite number of times and not reduce its value?" "Um," I say. "Sort of. But in a way it does reduce its value, because its value is entirely dependent on its exclusivity!" "Huh." Suspicious squint.

The necessity of creating a physical medium to convey informational property has concealed this problem for a very long time. Now that's changing, and we need to come up with a clear, intuitive way of getting that across to people.

The assumption I see to the inheritance arguments (Pro and con), is that the inheritors are necessarily themselves grown up and able to make their own way without the inheritance. House-wives/husbands or three year old children, however, have a harder time if there's no insurance, or income, or fallback.

Now, I think any writer who's making enough money to support their spouse and children failing to have some kind of insurance or provision in those circumstances would be crazed -- but the occasional supplementary income to make things easier is always a bonus, and one anyone whose heir is a small child would want.

I also see in comments like Avram's and Ross's the implication that the creator of the works is NOT the best judge of what happens to the royalties that are generated after their death. This is true on the far extremes of both sides of the argument, of course, but it seems to be more prevalent on the side of those who want copyright to end at death or otherwise. I think the decision should lie with the creator, as with every inheritance.

Of all the suggestions I've heard so far other than Go back to the original version, or the bureaucratic nightmare that would be "let each individual person decide their own", Charlie Stross's sounds the best - except:

"One letter, one ten year extension, renewable as long as the heirs continue to express an interest in the creator's works."

Does this mean if the heir is a corporation (As per Barrie's Children's Hospital) instead of a person, they can continue to send that letter every ten years for the next 200 years? Or did you mean with a reasonable cap for corporate heirs?

Well, as for what we either had once, have or may in the near future have, I think I'm in the boat of copyright conservative (As defined, I believe by Will Shetterley): I heartily approve of the idea that copyright extends past the moment my life ends so that Will Shetterley's hypothetical "Movie of my book rushed into production on the day I get hit by a car" can't happen without someone I care about guiding the way.

I also heartily disapprove of having it extend to ridiculous lengths because corporate companies have put extensions on the original notion. Yick. No more logical argument than that presents itself right not but that everyone here has already heard.

On lighter notes:

Scott: " I can be more thoughtless than you with one hand tied behind my back and a broken keyboard"

If I had one hand tied behind my back and a broken keyboard, the things I would be saying would qualify at their kindest as "thoughtless". Especially if I was saying them to the perpetrator of the damage to my keyboard, and innocent witnesses were present to hear them.

CD: "Also, a certain author with the initials L R H."

Ack! I sign my casual e-mails by my full initials. It does strange things to my mind to see myself referred to as a writer who is both published and posthumous...

(Yes, I know you meant the thing that is Hubbard. Believe me, that is one association I would be most pleased to be rid of. Can't we change his first name to Xavier or Quentin?)

As usual, many thoughtful and intelligent points made in these comments.

But regarding the debate over whether Xeni and company should just shut up (that is how this started, isn't it?) it seems to me

(1) that this is the usual lefty infighting that renders us ineffective.

(2) that Patrick is at least as guilty of the rhetoric that keeps framing it as us versus them. In his post it's "the bad guys". Can't have it both ways.

(3) that if anybody seriously thinks that the framing of intellectual property issues will sway the electorate in the next presidential or congressional elections, they are ever more out of touch with average Americans. Fight the battle in the courts, fight it wherever you can, but when have you heard it in a campaign speech? Maybe I missed it...

(4) that you can wrap yourself as tightly in the flag as you like, but flag-wrapped vs flag-wrapped always favors the incumbents. Did it work for Kerry, the war hero?

(5) that some cartoons are better than others. But trying to ban some because you don't get the joke is foolish. Or try this analogy: Bill called us a name. Patrick's response would be "I know you are but what am I?" Xeni and others laughed, made a wisecrack, and got over it.

(6) that humor and irreverence in every form are intrinsic to our society and when we lose that the Orwellians of every stripe have truly won. (Cue obligatory response from this crowd on my misuse of an Orwell reference)

Welcome back Patrick.

And now we return to the exploration of intellectual property rights issues, in progress...

Lenora: I also see in comments like Avram's and Ross's the implication that the creator of the works is NOT the best judge of what happens to the royalties that are generated after their death.

In my experience, dead people tend not to be very good judges of much of anything that happens after they die. Also, if copyright doesn't last past death, then no royalties will be generated after death for anyone to judge what happens to.

Dave Pentecost, it's not a question of framing the debate for the electorate (though I like to think that ultimately it will be). It's a matter of framing it for politicians and judges. They have to know that what they are doing can be explained as solidly American to those who might question them, which is to say, the people who fund their campaigns.

I think the commie symbols are hilarious. But they're lies. The communist solution is to abolish copyright, and if we had a democratic libertarian communist society, I would be content with that; I just want to be able to write what I want to write and know that I might not die in a gutter as a consequence. Copyleft isn't communist. It's sensible capitalism with freedom for the creator to choose a category of copyright.

And while I'm not one who thinks the internet will solve all our problems, I do think it makes registering the appropriate sort of copyright fairly easy. My wife recently got into a copyright awkwardness when she adapted a song called "The Black Fox" that she thought was in the public domain because it was on a tape produced pre-internet by people who clearly also thought it was in the public domain. But googling by a curious reader found the author, who has since received his well-deserved piece of the advance.

Avram - why are you only looking at the after-death portion of the scenario? My point was that some people (Jane and others like her) have a strong desire to have their creations benefit their family after they die.

WRT incentive, what if Jane lived in a world where copyright did not pass to her heirs, but went into public domain immediately after her death? What if, based on that, she decided to work at some other profession, or only write part-time? Direct monetary payment to the creator is only one form of incentive. The knowledge that their heirs will be helped after they die is an incentive for some artists to continue to create. I use the word "helped" very specifically - Tolkien and Roddenberry aside, most writers do not make enough to leave their heirs on easy street forever.

Lenora: "One letter, one ten year extension, renewable as long as the heirs continue to express an interest in the creator's works."

Does this mean if the heir is a corporation (As per Barrie's Children's Hospital) instead of a person, they can continue to send that letter every ten years for the next 200 years? Or did you mean with a reasonable cap for corporate heirs?

You spotted it, didn't you?

I'm proposing no cap for corporate heirs or anyone else.

Reasoning: if you combine my proposal with a cap for corporate copyrights, Disney will veto it. As it is, it succeeds in giving Disney what they want (the Mouse, in perpetuity) and in giving us what we want (security for our heirs and the option of choosing the public domain, at our discretion, with minimal cost). So I reckon it's a compromise that might stand some chance of going somewhere, today.

Jumping sideways into a completely different argument, I'm strongly of the opinion that we should deprive corporate bodies of their civil rights: they should be simple limited liability risk-management vehicles for business, not virtual citizens. Ideally this would deprive corporations of the ability to own or trade copyrights or assert ownership under "work for hire" clauses in contracts, and break a whole load of other dubious practices. The ability of "corporate citizens" to sue ordinary members of the public for defamation/libel (SLAPP lawsuits) is just one example of how things have gone off the rails in the past couple of centuries: I have no beef with business in principle, but I think the power imbalance between citizens and corporations needs to be fixed, urgently.

But that's a different struggle, and I believe in (a) only picking fights that it is possible to win, and (b) only picking one fight at a time (to avoid generating coalitions of enemies). Right now, corporate political clout is so strong that to go for the throat would be a Quixotic gesture, so I'll settle for something sensible that gets us out of the current trap that ties ordinary content creators (like us) to the coat-tails of Leviathan 2.0.

But but but. . .did you miss the post about my children being very much a part of working the farm? My daughter writes children's books with me, is my assistant, writes books and stories and poems on her own. My middle son writes novels with me, is a musician, writes novels and short fiction and poetry on his own. My youngest is a photographer and does picture books with me. Also sells photos, works as a photographer on contract to a major resort.

They are all in on decisions (especially my daughter who will be literay executor) having to do with my books, stories.

I harp on my own situation because 1. it's the clearest example I have 2. because in your rush to punish Disney and Gates, a lot of much smaller folk get in the way.

What I am saying is that if you take away after- death copyright protection for ordinary writers like me, then the winners will not necessarily be the general public but the big corporatins who then take my now-unprotected work and do whatever the hell they want with it. To the chagrin of my heirs.

For example, all Hollywood has to do is wait till I die (which is in most likelihood not that many years away) and then pay nothing to turn my books into films--and make money off them. Publishers could bring back hundreds of my books and make money off them, changing the text at will. And this suits the public how?

Will and Charlie can gift their works in their wills to whomever they want--NAACP, the Children's Hospital etc but mine go to my family, thanks.

Jane

Jane, I'm in the same boat as you, more or less. (My wife doesn't work on my books with me, but if I'm run over by a bus tomorrow she's the main beneficiary.) I'm not proposing this idea because I like kicking myself in the back of my own head.

I don't buy the farm analogy, though. As I said: about 90% of books go out of print within a couple of years' of the authors demise, and they stay out of print. Even the availability of POD doesn't seem to have changed that. The farm analogy breaks down because the author (in most cases) is the farm: no author, no new production.

In your case -- multiple collaborators still working -- it sounds like you might do better investigating the possibility of setting up a limited company and vesting your jointly held copyrights in it.

In my case -- well, I don't know how the IRS handles estates, but over here I believe the Inland Revenue takes the view that it can collect income tax due on royalties earned from the works as and when they're earned. Must talk to my accountant about that, but the idea that your copyrights can be assessed as tangible assets for inheritance purposes sounds completely bogus: they're not worth a bent penny until someone pays for them.

On second thoughts, I'd like to add that I think reasoning by analogy is really not very useful when discussing copyright terms, because the analogies that come to hand (the "family farm" business model, for instance) are subtly wrong.

I'd like to keep the discussion away from analogies, if you don't mind. (Colorful metaphors are fine, as long as they're just color :)

In response to Jane Yolen's:

But but but. . .did you miss the post about my children being very much a part of working the farm? My daughter writes children's books with me, is my assistant, writes books and stories and poems on her own. My middle son writes novels with me, is a musician, writes novels and short fiction and poetry on his own. My youngest is a photographer and does picture books with me. Also sells photos, works as a photographer on contract to a major resort.

IANAL, but it may be that if your children are already collaborating on some of your work, you might be able to make them joint copyright holders in at least the works they've collaborated on with you -- making them already part owners of the family farm (if we're going to stick with that increasingly barren analogy), without any need for special arrangements for inheritance.

For what it's worth, I know of at least one such arrangement under British law being tested in the courts. After the Beatles broke up, Paul McCartney was still under contract to Northern Songs. But his Wings material was credited to Paul and Linda McCartney. So, while half the royalties went to Northern Songs, as per the contract, the other half went to Linda free and clear. Sir Lew Grade, then owner of Northern Songs, sued, claiming the arrangement was a sham to get out of the contract -- and lost, as the court ruled, in effect, that Paul had the right to collaborate with whoever he liked.

(By the way, it feels a bit weird to cut in on this particular discussion pseudonymously, but when I've actually met people here, I wound up introducing myself by the pseudonym because it was the only name I had that had any particular meaning for them. So, to say a bit more about, at least, where I'm coming from -- I'm actually not personally involved in publishing in any way, particularly not as a published author. The closest thing I have to a dog in this fight is that I was, at one point, a major contributor to a prominent open source project -- details available on private request).

The problem with the "family farm" metaphor being used to argue about copyright terms is that writings do not occur naturally as physical property, whereas a farm or business or land naturally does.

Intellectual works are turned into "property" by law alone. Without copyright law, a book is public domain as soon as it is written.

Copyright terms should be set to a duration such that an author/artist/musician/director can make a profit on their work/time/effort needed to create/distribute the work with a profit margin big enough to allow for cover for some failures before success is found.

That does not translate to life-plus-70-years.
I don't give a damn about some author's heirs, because those heirs didn't do anything to create the authors work, and it isn't the public's responsibility to surrender its rights to the author for such a duration that the authors great-great-grandchildren are still getting royalty payments.

The copyright system is to reward the author with enough rights to make a sum of money on par with the work the author put into it plus a multiplier.

It isn't designed to be a welfare system for the heirs of deceased authors.

That said, I find the whole idea of basing the term of copyright off of the death of the author to be exceedingly morbid. Corporate copyrights are for a fixed duration, and I think that should be true of all works regardless of how they were created.

40 years from date of publication should be enough time for anyone to make enough money to pay for their time and effort. After that, it becomes corporate and heir welfare. (well, maybe 50 years, but that's pushing it)

If a writer publishes a book and keels over, then the heirs can inherit that work, but it's still only 40 years for that individual book. A book published by the author 40 years before he dies will become public domain.

Setting terms to life-plus-70-years means that heirs inherit every single work the author ever wrote, and that's just whacky.

The most expensive copyright production would be a movie, which can cost a couple hundred million dollars to create. Most movies make that money back the first couple of weeks its in theaters.

If they can't make a profit after 40 years then it's because it was a stinker of a movie.

The original copyright term was either 15 years plus an extension for an additional 15, or 30 plus 30 year extension (can't remember off hand). and it wasn't the end of the world. They crept up over the years, but it wasn't until 1970's that they jumped to life-plus-fifty. then to life-plus-seventy back in 1998.

40 years ought to be enough.

Jill, if artists want to provide for their families after their deaths, they can do that, there are all sorts of mechanisms for that.

If Jane's primary motivation in life was to provide for her family, my advice to her (to anyone) is not to try to make a living in the arts, but to become an investment banker. Those guys make serious cash. Then write books or whatever on the side.

If your primary motivation is to make art, then you're probably going to make art, regardless of what incentives exist after you're dead.

Jane: For example, all Hollywood has to do is wait till I die (which is in most likelihood not that many years away) and then pay nothing to turn my books into films--and make money off them. Publishers could bring back hundreds of my books and make money off them, changing the text at will. And this suits the public how?

You're asking how it benefits the public to have your books in print?

Y'know what I'm reading now? Frankenstein, by Mary Shelly, the revised 1831 text. A cheap Barnes & Noble edition, mass-market paperback, Goya's "The Giant" on the cover. Picked it up a few weeks ago for $3.95. When's the last time you saw a new paperback with a $3.95 cover price?

I also saw a combined edition of Machiavelli's The Prince and Sun Tzu's The Art of War, nice pretty pocket-sized hardcover with gilt-edged paper and a bookmark ribbon bound in, for $4.95. (Didn't buy it, but might later.)

Do you think either of these editions would exist at those prices if those works were still under copyright?

And if I were really broke, and couldn't afford either of those books, or if I just wanted to do an automated word-search or something, they're available online for just the cost of my net connection (which is free in my case).

Y'know what else I like to read? A webcomic called Jeremy by Jon Morris. It's about a nine-year-old Frankenstein's monster. Morris publishes it for free on the web. Do you think he'd be doing that if he had to pay the heirs of Mary Shelley for the right to use the name "Frankenstein"?

It's not just Hollywood and Bill Gates who benefit from being able to make movies of your books. In fact, they're not even the primary beneficiaries. if a Hollywood movie studio thought they could make a good profit off of one of your books, do you think they'd hesitate to offer you whatever pittance they give authors? It's such a tiny, tiny fraction of the cost of making a modern movie.

It's small movie-makers who'd benefit. Patrick Farley with his new copy of Final Cut Express, do you think he can afford to offer you a few thousand dollars to make an animated movie based on one of your stories? Some group of high school students with their school's equipment, can they afford it?

Sure, they can ask, and maybe you'll like them and license them the rights for a dollar or something. But what if, after you're gone, your kids disagree over whether to license the rights out, or what to charge? Or maybe their kids -- copyright current lasts for author's life plus seventy years. You could wind up with great-grandkids squabbling over which studio gets which license. None of which would benefit the people who just want to see the movie.

Related to this debate is the one regarding intellectual property of scholars, scientists, and mathematicians. Here, instead of "Literature" in the sense of Shakespeare, Yolen, et al., we have "Literatures" in the sense of "The Literature of X-ray Crystallography" or "The Literature of Integer Sequences."

In this bizarro world, authors traditionally paid for the privilege of publication in prestigious legitimate journals. To novelists, poets, or short story authors this would seem to be vanity press. Yet this was the tradition, through the mechanism of "page charges" which the journals presumed that the costs were passed on by the authors to their corporations, universities, or granting agencies. Copyrights were usually held by the journals or the publishers of the proceedings of conferences.

The internet has profoundly and rapidly changed the nature of publication for scholars, scientists, and mathematicians, in more ways that is appropriate to describe in this blog. Pre-web, I would still have had a couple of dozen publications in 2004 (i.e. my papers presented at international conferences). Post-web, I had an average of one scholarly publication per day throughout 2004. For instance, over 220 able-to-be-cited edited publications on AT&T Research's Online Encyclopedia of Integer Sequences [OEIS], or the 5th paragraph of New Scientist Feedback, 18 Dec 2004.

However, the scholars, scientists, and mathematicians have been forced to accept that this system is, for them, demonetized. One does not get paid for publication. One "gives it away" as a loss leader, in hopes of employment, promotion, tenure, and grants. Ultimately, all we own is our intellectual property (in a degraded way) and our reputation. Hence reputation is almost everything in Academe.

I analogize OEIS as Open Source Math. Contributors have, through an elite editorial board, their new Math published in little 1-page modules, which explicitly hotlink to other web pages, internally cite others of the 100,000+ OEIS pages, and cite to the Literatures of Mathematics in books and journals. Comments by contributors are often edited onto the original contributors' pages. Coauthorships develop, often by people who never meet face to face.

Hence the issues debated in this blog on the nature of copyright, IP, copyleft, open source, vanity press, and the perception of these by the public at large, robber barons such as Gate$, The Press, judges, and legislators is tied -- as in the Constitution itself -- to the more general issue of advancing the Arts and Sciences themselves, and to the benefits of the nation and the content creators.

Greg: This isn't about people making money, it's about people creating things.

People who have created things have the right to make whatever money there is to be made from them, and also the right not to see other people mess about with them, while they are alive -- or at least it should be their choice.

This applies as much to Jack Williamson at eighty-seven as it does when he was twenty.

I'm sure he's made plenty of money in the forty-plus years his early work has been in print -- but if someone wanted to make a movie of one of them tomorrow, he ought to have the right to say yes or no, and the right to some money from that.

I like Charlie's suggestion, and I think ten years after death is plenty.

I once investigated the position, in Britain, of saying in one's will that all one's work becomes public domain at death, and discovered that there doesn't seem to be one.

Also, I quite like the traditional old US system of having an automatic 28 year renewable copyright period -- if you're alive and care, you renew, if not, it goes back into the soup of stories.

I do not believe that works of art should be in copyright in perpetuity. That does NOT serve the public. But I do think that the artist and his/her heirs should have a say in things, get some money if there is some for a solid amount of time.

Most of us who write for children make little enough money at it, but some (think Rowling, of course, but also Eric Carle and Lemony Snicket etc.) make quite a bit. I do not begrudge them immediate sales and immediate monies. They have worked hard, given great satisfaction to many, and
have had great luck as well.

Most of us who are in the middle range, give permission to storytellers, teachers, children etc. to make use of our work in their own way. We want the stories to stay alive.

The difference comes when Hollyweird or Major Media or game makers or the like step in. Why should they be allowed, 28 years after I initially publish a story--or ten years after I am dead--to make gadzillions just because they waited?

My latest movie options have been on books that are fifteen and thirty years away from their original publication. With no copyright protection, a cautious and canny movie maker could wait a few years more and steal them after the fact of my demise. And then with no barriers, they could do whatever the hell they want. (Well, obviously they do that anyway, cf Earthsea!>

I must be very old fashioned here. I want my children to benefit some from my years of hard work. And I want them to be good and generous
executors of their trust so that others will benefit as well.

Jane

"But I do think that the artist and his/her heirs should have a say in things, get some money if there is some for a solid amount of time."

But artists don't have these rights now. How is supporting Bill Gates, Disney, et al going to get them for artists? It is against their financial interests! The Berne Convention has a very modest gesture towards the enduring rights of the artist, called "moral rights", but even that doesn't say anything to economic rights, only a right to control how the work is used.

I think the real problem I have with cutting off copyright at death is that it treats artists who work in this sort of media differently than it does any other person who creates something. Picasso could leave the paintings he had painted and still owned to his heirs. A founder/owner of a company can leave the company to her heirs. Why does the ownership of a writer's copyright have to end immediately at death?

I don't think a perpetual copyright is a good idea either, but it seems odd to impose a rule that copyright ends at death.

Avram - you can desire your family to own and control your work for some period past your death, even if your "primary" motivation is to create art. Few people have leaving a legacy as their primary motivation, yet their heirs can inherit the things they create. Is it fair to the writer or recording artist to make what they have created completely uninheritable?

Jane: The difference comes when Hollyweird or Major Media or game makers or the like step in. Why should they be allowed, 28 years after I initially publish a story--or ten years after I am dead--to make gadzillions just because they waited?

Why should a movie studio be allowed to make adaptations of Frankenstein or Dracula, just because the original creators have been dead for over a century?

You're advancing a slippery-slope argument. I don't like slippery slope arguments: they tend to slide from honoring the original intent into something quite different.

Here's a question: who do you envisage your literary heirs as being, seventy years after your death? Ninety-five years after your death? Do you sincerely expect any of your direct heirs to be alive in 95 years' time? Or even 70?

70 years is a monstrous span of time to try to rule with a post-mortem hand. 95 years is unimaginable. We have no way of knowing what the world's going to look like even two decades hence; how, then, should we seek to control it half a century and more past our own deaths?

I agree that wanting one's heirs to benefit from one's writing is perfectly reasonable. But you seem to be conflating that with denying other entities the opportunity to benefit from your writing, and using this as a reason to seek slippery-slope extensions to the duration of copyright. The same logic that applies to a big Hollywood studio taking your plots also applies to a high school theatrical production. If you're not around to make your intentions clear things get muddy. (Especially a century after the event.)

Getting back to basics: as a writer, I don't care how people use my work unless they are using it to make money and failing to cut me and mine in on the profits. I assume that you feel likewise, from your reference to "storytellers, teachers, children, etc".

Doesn't it strike you that if your work is out of print (note that important stipulation!), then explicitly placing it in the public domain would prevent a large corporation from exploiting it without the fear of competition? If it's explicitly out of copyright they lose the ability to monopolize it, and the way the major media organizations operate currently, that's the kiss of death for a project (because they can't then control third party merchandising, which is where the profits come from). They have to radically reinterpret classic fictions like Dracula or Frankenstein in new mutant forms like Van Helsing in order to obtain a degree of exclusivity.

Finally, and most importantly, placing a work in the public domain does not prevent you or your heirs from profiting thereby. Perhaps the best example I can note at this point is Cory Doctorow's experiment with Down and Out in the Magic Kingdom and Eastern Standard Tribe (not to mention his other books) -- would Patrick care to comment?

Presuming I live another five years, my children would then be 39, 42, 43 and given a 50 year lifetime of the copyright after death, would help them throughout their lives and educate their kids and, to some degree, help the grandkids (though to a diminishing degree as there are six of them and by then most of my books would likely to be OP.)
After that, the family is on its own.

Slippery slope, Charlie? Does that mean nothing after death at all for the copyright? Anything other than nothing IS a slippery slope, at least that's how I read your comments. That's pretty draconian.

As it is, I cannot even give my mss. to libraries for any recompense, though artists can. Except... except I can take off the cost of the paper! However, I can sell the mss. and correspondence to a second party and THAT person can gift them and get a tax credit. How bizarre is that? (By the way, I give my mss. and papers to the Un. of Minnesota On Permanent Loan without any tax credits. But it sure would help.)

Jane

Jane: Most of us who are in the middle range, give permission to storytellers, teachers, children etc. to make use of our work in their own way. [...] The difference comes when Hollyweird or Major Media or game makers or the like step in.

Why is that different?

Do you see what you're doing here? You're setting up one group of people who you identify with (storytellers, teachers, children), and then another group of weird outsiders (movie makers, game makers, major media) who I'm guessing you don't identify with, and expect us not to either.

Doesn't work on me. I used to work for a game company, some of my friends still do, and I know a lot of game designers. They're not weird outsiders to me, and you aren't going to win any arguments with me by acting as if they are.

Having lots of money (not that all, or even many, game publishers or designers have lots of money -- I'm bringing this back to Hollywood) doesn't make a person evil, or weird, or any less deserving of respect. In fact, the more money a company has, the less likely they are to regard having to license a work as an obstacle. If I'm trying to self-publish a comic book then having to pay even a few hundred dollars for the rights to a story is a significant obstacle. If I'm a movie studio with a budget of hundreds of millions of dollars, the inflation involved in waiting five or ten years will probably cost me more than just paying you a license fee now.

Jill, a painter's copyright ends at the same time anybody else's does. There's a distinction between ownership of a physical painting and ownership of the copyright for that painting.

Having copyright end at death doesn't treat writers any differently than painters; it's the difference between writing and painting that treats them differently. Even under our current copyright regime, a writer's heirs get copyright and manuscripts, and a painter's heirs get copyright and paintings, and paintings are usually worth more than manuscripts.

That's just life. It's not fair. It's not fair that oil painter stink of turpentine while acrylic painters and watercolorists don't. Should we pass a law forcing the latter artists to sprinkle some turps on their clothes to even things out?

A small family farm example which might suggest another way of handling the issue:

I was a tenant farmer, until the economics (costs, prices, and farm size, mostly) went against me. The tenancy was of a type which had been set up by statute shortly after WW2, and modified later, but is no longer used for new tenancies.

Part of it was the concept of Succession. It didn't die with the tenant. It could be inheritied, under fairly strict rules. I worked on the farm, so I could succeed to the tenacny when my father retired. My brother, a non-farmer, could not. And there were a limited number of successions allowed.

There were other elements, ways for the Landlord to regain occupation of the land. It wasn't extremely biased against the Landlord.

Anyway, would an inheritable copyright, with a limited number of transfers, answer some of the problems?

Or is the real issue the nature of corporations, undying, and thus needing special provisions, special limits whuch they have the resources to influence in the legislatures?

Are we even in the right argument?

Charlie, asking storymakers to avoid analogies is like asking scientists to avoid numbers. Analogy may be fluid, but that doesn't mean it's wrong. Take the farm analogy. If you're looking at it with a 21st century US commercial take, there are at least two different metaphors there: the little family farm that we like to imagine where families are healthy and cows and chickens have range and unadulterated feed. Then there's the factory farm, where the checks go to someone who does none of the work. (I'm not prepared to take on Dave Bell's tenant farm now, though I agree that corporations are a major issue in all of this.)

Some writers think they have gone into the wilderness where no human has been and cleared the land and tilled the soil and planted seeds that were bought with their hard labor. Other writers think they've been granted a plot on the commons, and seeds and compost are all around for their use, and they like knowing that when they're gone, any useful strain they might have developed will be taken by others who're growing things there. If I'm really lucky, someday someone will be able to say, Ay, that's a fine Shetterly apple. Young Jenny was experimenting with a Shetterly and a Yolen, and she came up with a fine Jenny apple, though there's still some what prefer the pure Shetterly or the pure Yolen.

Another thing that occurred to me while I was out at the coffeeshop -- Jane, the folks you dismiss as "Hollywierd", they're on your side of the argument. Disney bribed Congress to extend the length of copyright to life+70, and when it starts to look like "Steamboat Willie" is going to fall into the public domain, they'll have it extended again. If they have their way nothing will ever fall into the public domain, and your great-great-great-great-great-great-great grandkids will be able to haggle over the rights to your books.

I'm sorry--where did you all miss the part where I said I didn't believe in extending copyright in perpetuity? Just a reasonable time after death. I thought we were arguing about how reasonable the time would be (or how slippery the slope, viz Charlie's metaphor.)

But I have hijacked Patrick's topic for too long over what for me is a highly personal matter.

By the way, I am sure there are wonderful individuals in Hollywood and in the games industry, but again, my experience is personal.

And now as I said before, but mean this time:
Shut up, Jane.

Jane

The metaphor for copyright is not a family farm, it's the act of farming.

Writing is like farming.
public domain is the land upon which you can plant.
When you write, you plow through the public domain, cultivate it, and plant your own new ideas that spring forth from it.
The writing you create is like the crop that the farmer grows.
And the compensation you get for your writing is like the money a farmer gets for his crop.

The writer has a right to get paid for the plowing and tilling and planting and nursing that it took to create the new work.

A farmer might spend 3 months to plant/harvest a crop and will need to make enough money to live for a year, and I see no problem in getting paid a year's wages for a 3-month crop in this situation.

But all this drama about heirs and "It's my work, I get to say what people do with it as long as I'm alive" is so much drama and so misses the other half of intellectual property law mentioned in the constitution. Besides calling out Writers specifically, the constitution also calls out Inventors.

Patents, even today, only last 20 years.

20 years and the invention becomes public domain.

20 years and the inventor loses ALL SAY of what people can do with their invention. All moral rights dissolve. Their heirs get nothing. 20 years and anyone can manufacture copies of the invention without paying the inventor a red cent.

And yet people still invent. Poeple still invest time and energy for the chance of designing the better mousetrap and getting financial reward for it.

All this talk about heirs and moral rights to your books is nothing more than drama. It pays no mind to any sense of balance between effort/energy invested by the writer versus the reward/payoff the writer should get. It pays no mind to patent law which only lasts 20 years and yet people still invent.

Because patent rights are much more strict than copyrights, I support the idea of copyrights lasting longer than patents, but that only goes up to 40 years or so. After that, I've heard no argument for longer copyrights that doesn't ignore history (original copyright terms were 30 years), ignore economic balance (writer reward should match writer investment), and ignore a thriving patent system that somehow manages to scrape by on but 20 years of legal protection before the invention returns to the public domain.

If copyright were set to last 40 years, people would still write. Some might find other business because they were strictly in it for the money. But many people would still write, and still pay the bills, and make a living, and new works would be created.

20 year patents seems to be enough to keep inventors going.

40 years ought to be enough for writers.

And mayakda, I don't think Patrick ever said the image wasn't funny. He said it wasn't wise. In fact, the funnier it is, the less wise it is.

Good point. But I meant that I agree with him that it's a bad idea, and I don't think it's funny. Just a personal thing. I don't think communism is funny.

Jane, I've been very grateful for your comments, and would appreciate one more (and am very sorry if I missed it earlier): How long do you think copyright should extend? Under the current system of regular Mouse extensions, the US answer is "Since Steamboat Willy."

Greg, original copyright periods were 28 years, nonrenewable. Dunno why they picked 28 years, but would love to hear it.

Greg, original copyright periods were 28 years, nonrenewable. Dunno why they picked 28 years, but would love to hear it.

A slight correction: copyright was for 14 years, renewable once. See http://creativecommons.org/projects/founderscopyright/

Why 14 and not, say, 15, is a good question. Probably someone's dissertation topic.

The thing that I don't quite get is the move from a fixed (if renewable) term to lifetime plus. In 1909, the term was set at 28, renewable once. In 1976, it was changed to lifetime plus 50. I think Jane speaks wisdom that a creator should be able to leave something for heirs. But if I write something as a twenty-year old and I live to be seventy, why does that get a staggering 145 years of protection, when a piece I finish shortly before I drop dead only gets 95?

It seems to me that copyright terms should be fixed independent of lifetime. 56 years is a generous allocation. Under this scheme, the fine work that Jane is producing now (and may I say that my son is currently enjoying the How a Dinosaur books) could provide for her heirs for more than fifty more years, regardless of how long she lives (and, of course, I hope many more healthy and productive years).

It's also worth pointing out that the range of debate is more than just length of term: the original copyright didn't protect derivative works, so it wouldn't stop the dreaded Hollyweird film adaptation.

Some of you -- Jane, Will, Alex, Greg -- are all making a common mistake (as seen from my perspective): you're thinking of copyright in terms of the US Constitution. I'm not American, and from where I'm standing copyright is not determined in terms of US law -- it's determined by the World Intellectual Property Organization treaties, established under UN auspices (with the blessing of the US and other governments) to standardize copyright arrangements worldwide.

Two vitally important things to understand about WIPO are that (a) its deliberations are lobbied at only by the biggest of corporations (small fry like us don't get a look in), and (b) its copyright provisions are enforced by the machinery of international trade law and the WTO.

The US government can't trivially legislate around the WIPO treaty agreements. But it can exceed the WIPO treaties' minimum terms -- and this will then be taken as a precedent for extending the minimum terms in other countries signatory to the WIPO agreements. This, the extension of copyright becomes a one-way ratchet effect, and ensures that trying to buck the trend will invoke automatic trade sanctions against any country that refuses to go along with it.

This isn't an argument within American law. It's worldwide, and battles fought and lost in other countries can affect you directly.

Charlie,

I haven't ignored WIPO. It is the current culmination of centuries of "ratcheting".

around 1790, US copyright lasted 28 years (thanks Alex). It was extended only to US citizens. Foriegn works could by copied/printed without care. Every country for themselves.

It became apparent that treaties were needed to honor copyright from one country to another. The US signed teh UCC which had few members, and we extended copyright to 60 years. The US signed UCC around 1900.

A number of European countries signed the Berne Treaty, which had a lot of signatories, and set minimum copyright terms to be life-plus-fifty. Victor Hugo was a proponent of the Berne Treaty.

It wasn't until 1970 that the US signed the Berne treaty, extending terms to life-plus-fifty.

Later (1990's I think) the european members of Berne decided they should all agree on one single copyright term, (berne specified a minimum), and they decided to pick the longest term used by their members, which was Germany which had a life-plus-70 duration.

WIPO was pushed by our American patent office when Bill Clinton was president. It added a number of clauses and was implemented in the US by the DMCA, which included such obnoxious restrictions as an anti-circumvention clause.

The same month that DMCA was pushed thorugh congress, they also pushed through the CTEA (copyright term extension act/Sonny Bono act) which extended terms from life-plus-50 to life-plus-70. The argument given was that it would keep us on-par with the europeans. But the fact that Disney lobbied millions of dollars of direct contributions and probably an order of magnitude of indirect lobbying might have had something to do with it.

In theory, if the citizens of the US (or any other country) petition their government for shorter terms and fewer rights, then that government should attempt to renegotiate their current internation treaties and if those negotiations fail, they should withdraw from the treaty.

No one "has" to be a member of wipo or berne or ucc.

Note: all numbers are approximate and subject to memory clouding and whatnot. I don't have my notes with me. I need to put my notes online soon.

As a sidelight, it happens that Cory Doctorow's day job involves, among other things, attempting to lobby WIPO on behalf of small fry. The corporate interests are reportedly displeased.

At any rate, between their efforts, and the efforts of governments like Brazil which are arguing for some measure of restraint, things are no longer worsening as fast as they used to be. You could call that "progress" -- but that's a term I'd rather reserve for actual improvement in the status quo...

Alex, thanks! There's always that warning bell when I correct someone; I should've heeded it this time. I did a quick google and found a reference to the roots of US copyright: the 1709 Statute of Anne. But I didn't find a reason for choosing fourteen plus a renewable fourteen, and I really shouldn't take on another research project now.

I've decided to officialy change my position. I was giving qualified support to life plus ten as a reasonable compromise, but between thinking about the original intent of copyright and the rather macabre and arbitrary nature of "death plus X years," I'm now firmly in the camp of those who favor a set number of years for maximum copyright. We live in a culture that loves multiples of five and ten. Why not 25 years, renewable every 25 years for your nation's smallest economic unit (meaning, in the U.S., a penny)? And, sigh, as a concession to those who want to milk a hot property, let it be renewable three times for a maximum of 100 years?

Charlie, Jane and I live in a country that has more than 40 million citizens who are not covered by health care. In my state, Arizona, I do have limited health care thanks to a program for folks who don't make much money, but the Bush administration wants to do away with that. We're forced to be obsessed with the silly ways our country does things. That said, I fully agree that we should discuss copyright as an issue of transnational corporate exploitation.

Will, your proposal has one big problem: a fixed-term copyright means that individual items you've written are dribbled out of copyright control over a period of time. Which means we have to track the first publication date of everything from short stories to reprint anthologies to book club editions of novels, if we want to be able to assert that stuff we wrote is still in copyright.

This might be do-able using modern information technology, but it adds a whole raft of bureaucracy and/or database tech to what was previously a simple job (find out when the author died, add X years). And who do you think will end up paying for it?

That was also the main objection to Lawrence Lessig's proposal to require a simple re-registration at regular intervals for each work: it effectively imposes a tax on copyrights, with short story authors who earn sod-all paying more than large media conglomerates with a relatively small portfolio of high-value movies. (See also : Thatcher's poll tax, and how it was received in the UK in the 1980's.) At least post-mortem systems only give us one date to keep track of.

I maintain that, regardless of the solution, the solution has to be one that satisfies you, and me, and Jane, and Disney, and Microsoft. (It may be that what we're seeking is separate rules for corporate-owned copyrights.) And to do that, the eventual solution needs to not be encumbered by excessive bureaucratic overheads, must be cheap to run, should not be disproportionately expensive for the small guys, and above all it must be seen to be equitable and fair.

That's a tall order and I don't expect anyone to come up with a proposal that satisfies it just on the spur of the moment.

Charlie, ah! I don't think I've every moved so quickly between camps, but I guess I'm not firmly opposed to "death plus X" after all.

Simplicity is important. But we don't have to be too simple. Keep in mind that copyleft is still a commercial concept, and it's therefore appropriate to have a commercial registry. Since this is the web, I'll go with a few spur of the moment thoughts:

1. The creator should have a guaranteed period of protection for a creation.

2. The creator should have the option of ending that period of protection in order to move something quickly into the public domain.

3. Extending protection beyond the guaranteed period should be cheap for the sake of poor creators, but it does not need to be free. The purpose of extending protection is to increase the chance of making money, and a fine old capitalist principle is that you should be prepared to spend money to make money.

I wish all countries that subscribe to the principle of copyright would jointly fund a web site where all works are registered. Want to know if Thorne Smith's first Topper book is in the public domain? Go to the site and learn for free.

One of my frustrations with capitalism is that because it's focused exclusively on profit, convenience and clarity are only factors when they're profitable.

And, on another note, I've gotten a little uncomfortable with "copyleft" because it's not an inherently leftist issue. The name's clever, but it's potentially divisive. Success calls for making as many allies as possible.

Charlie,

Corporate copyright terms are already 90 years fixed. That means they already keep track of those terms. When you register a work for copyright protection, you check a box whether it's published or not. If it's checked, that should be enough to maintain a database of when a work was published and when it will enter public domain. That information is already available for online searching
here.

This is part of what your $30 registration fee pays for.

When a publisher registers a magazine, it should be able to list all the works contained therin. Including your shortstory, title, and date of publication.

Charlie, is it really that difficult to keep track of when your stories were published? Sam Clemens managed it back in the days when typewriters were cutting-edge technology. How hard can it be to keep a drawer of folders with years marked on them, and stick acceptance letters (or some other form of convenient note) in them? Or keep a list on your computer?

Avram,

The more someone publishes, the harder it is to track. I assure you, speaking of Twain and the Typewriter (let's not discuss Twain's investments in typesetting) that Isaac Asimov never fully knew, although he tried to collect, every edition of every translation of every book collecting every magazine article or story that he wrote. As I have endeavored to publish online biographical and bibliographical material on some 20,000 authors I am acutely aware of how increasingly erroneous and obsolete my indexing becomes. The challenge remains: how to be effective, fair, rational, and efficient, in protecting those who publish thousands of times, those who publish a handful of times, and everyone in between, in countries and media and literatures and markets with widely different parameters, timespans, and monetizations?

It's called a database, folks.
We have the technology.
We can rebuild him.

Greg London,

That does not solve the problem. I am rather widely published, but the search engine to which you directed us says only:

Registered Works Database (Author Search)
Search For: POST, JONATHAN
--------------------------------------------------

Check one or more terms, select the type of output display, and then click Submit:

POST, JOHN, 1968- (1 item)
POST, JOHN, 1973- (1 item)
POST, JONATHAN F. S., 1947- (2 items)
POST, JORDAN WOODRUFF, 1949- (1 item)
POST, JORY (10 items)
POST, JOSEPH A (1 item)
POST, JOSEPH, 1984- (1 item)
POST, JOSEPHINE P., 1952- (1 item)
POST, JOSEPHINE PATRICIA, 1952- (12 items)
POST, JOYCE (1 item)
POST, JOYCE A (2 items)
POST, JOYCE A., 1939- (1 item)

which seems to show me as an unpublished amateur.

Greg: I've never registered a copyright in my life. I wouldn't know where to begin: I rely on the Berne convention assertion of moral rights (and my agent and publishers). As for the US copyright agency, it doesn't list 80% of the magazines in which my articles and fiction have been published over the years, because they weren't published in the USA. (Do you begin to see why I was saying this was an international problem?)

Avram: if we're looking at fiction, I've only sold thirty or so stories and ten books. If we're going to include non-fiction articles, however, you can increase the total by an order of magnitude. In many cases with no separate contract, just an invoice that I faxed through to someone and a subsequent wire transfer. In some cases I no longer have the article copy, or the fax, or a copy of the publication (and the publishers went bust years ago). And I haven't been a full time freelance writer for very long, especially compared to folks like Jane Yolen.

A prolific freelance journalist and writer can easily produce over a hundred items per year, and if only a couple of them get re-printed ... well, how do you know which ones are going to be important? Twenty, fifty, however many, years in advance?

(To go back to the Lessig proposal, the idea of charging $10 to register a copyright once a decade sounds great: except Lawrence never worked as a journalist or short story writer, so he didn't realize his proposal would end up costing small folks as much in renewal fees as -- or more than -- Disney corporation.)

Will: I've got issues with Copyleft, too, largely surrounding Richard Stallman and the Ego That Walks Like a Man. The word, incidentally, was coined in opposition to copyright, not because he's a socialist: Stallman is an anarchist (and not a libertarian like Eric Raymond). One of the consdequences of this is that there's an invisible ideological elephant trailing along behind the GPL -- one that Stallman is reluctant to own up to in public, and which acts as a poison pill for many people who would otherwise quite like to get on the same bandwagon.

God, I can't believe I wrote "invisible ideological elephant" in somebody else's blog comments. I think I need a beer ...

JVP: the search engine to which you directed us says only

The system currently gives little incentive to register, so you're not going to see every work. Copyright is automatic without registration or even a copyright notice. Registering only gives you the possibility of sueing for extended damages if you register before the alleged infringement occurred (or up to three months after published). And it costs you 30 bucks a pop.

Someone prolific should be allowed to register all the works they've written in the last three months at the same time for one $30 fee and simply list each individual article. The process could involve electronic transfer so that the author can do all the data entry and save the copyright office the overhead when multiple entries are involved and keep costs down.

Current registration is a paper form processed by someone manually. There is no reason it couldn't be automated so that an author could register 100 articles at the same time and still list those works individually in the database.

The current database is a strawman version of what could be created. As far as I can tell, your concerns would be solved if the system were redesigned with an emphasis on fixed-term copyrights.

Since I'm s'posed to be a storyteller, I wrote a story about copyright over the weekend: The People Who Owned the Bible. It's slight, so I put it under the Creative Commons Attribution-ShareAlike License.

It doesn't address any of the later discussion in this thread. I think my firmness on those issues is holding at: until society cares for everyone, artists need some copyright for a while, but not too long.

Good post, Patrick. Copyright protection is intended for innovators, not corporate franchise owners. The public domain is our collective heritage and we should allow corporations to grab it.

There is also something to be said for the movement by creators to deliberately give things away. But these are separate issues. Don't let them get tangled.

Oops. we should allow corporations to grab it. should read we should not allow corporations to grab it.

At the very least, we need to get a firm handle on fixed-term versus death-plus while people are still dying. Because once that stops happening, nothing will ever go out of copyright.

Ray, have you read John C Wright's "Golden Age" trilogy?

Greg says The most expensive copyright production would be a movie, which can cost a couple hundred million dollars to create. Most movies make that money back the first couple of weeks its in theaters. IIRC, this is no longer true; aside from the fact that a fair number of movies lose money even without the sort of creative accounting that screwed Buchwald out of payments for Coming to America, the majority of revenue now comes from aftersales rather than theatrical release. (No, I can't give you figures on copies (e.g., DVDs) vs merchandise, although my impression was that for most movies most of the money was in copies. No, I can't give you numbers of releases for which this is true. I recall this being from relatively-reliable-but-casual reading; practitioners of SearchEngine-foo are encouraged to be specific or contradict.) This is what has Disney's knickers in a twist: they used to have to re-release the old films every ~7 years, paying for publicity and clean copies and sharing revenue with theaters; now they see a chance for a nice steady eternal revenue stream, and they're defending it with the same vigor that the law firms in Gladiator at Law defended the rights to their hundred-year-old cases.

JvP: Asimov is an extreme example of anything having to do with writing -- but you are exaggerating even that, because nothing requires tracking \all/ of the instances of publication; the only requirement was to track \first/ publication.

Avram: That's just life. It's not fair. ("It's only fairer than death."?) Well, yes -- but one of the purposes of law is to get a common framework that is fair enough that practically everyone will work with it, instead acting nasty and brutish in the hope of having a slightly less-short life than their neighbors. Are there practical limits? Of course -- but dismissing fairness means we never know those limits.

I'm nowhere near decided on this issue; I appreciate Jane's position but have more than a little sympathy for the other side -- "save the family farm/business" was the red herring used to get away with abolishing the estate tax, which I am absolutely opposed to. (I can see supporting a mechanism that allowed a small business to be inherited as a going concern instead of being
broken up to pay estate taxes, but it isn't the smallholders who get most of the benefit from that Shrubbism.) In a truly ideal world it would be possible to prevent massive corporations from hiding behind laws intended to protect individuals; abolishing corporate personhood (cf Charlie) might help, which probably means it won't happen.

I understand what you're saying, Patrick but I think your concern is a little misplaced. Few people seriously believes in The Red Menace anymore and the ones that do are rightfully dismissed as kranks, Left over Cold Warriors and John Birchers. It's a joke, as were these images. Riffing on King Bill's backwards claim that CC activists are commies is throwing the joke in his face. And from the CC point of view, the appropriation of images is part of what we're fighting for the right to do. Grant it, the joke has a short shelf life but what jokes don't?

CHip,

The point is that 40 or so years ought to be enough time for someone to make a profit above and beyond the time and energy they put into creating the work. This should be long enough to cover a story to novel to movie to re-releases cycle.

The public has paid Disney many times over what it cost to make Steamboat Mickey. It's time to let it go.

Hm, here's a new frame for the continual extension of copyright terms: Copyright Subsidies.

CHip:

You're right, of course, that I picked Asimov as an extreme example. But one does need to track first publication, and first foreign publication, and translations (new language = new work) and later editions with new introductions or rewrites which may be either derivative works or new works.... Asimov famously declined book editors' offers to have staff build the indices at the end, as he personally enjoyed indexing his own work.

Then there are those matters that come up in Nebula nominations, where an author can withdraw a first publication in an obscure publication in one year and allow to be nominated a later edition in a more widely distributed edition. Further, on might have a first publication online, but a subsequent book or magazine publication is the first to have its copyright registered. Then there are "fix-up" novels built from slightly rewritten short stories or novellas with continuity text gluing the mutated older works together. Then there are the "book based on the movie based on the book" as with A Brief History of Time, and with the novelization of the film "Mary Shelly's Frankenstein."

I'm not trying to overcomplicate this; it is inherently complicated. As Saint Albert Einstein said, this being the centenary of his miraculous year, "One should make a theory as simple as possible -- but no simpler."

Inspired by this thread, I went out today and bought an expanding 26-pocket file, meaning to rationalize my storage of book and story contracts. (My filing cabinet is crudely but workably organized; however, over the past couple of years the "C" for Contracts section has exploded and it makes things very hard to find.)

I thought I had things under control. Think again: I last sold a story to Interzone in, um, 1997? 1998? And I can't find any of those contracts. I think I know where they are -- in a manilla folder in a storage box in the attic over the bathroom, along with the ancient accounts and receipts I've been hanging on to in case the Inland Revenue Special Forces kick the door down and audit me -- but that's not much help if I wanted to document my rights.

The combined mass is roughly two inches thick. It does not include various contracts with non-English-language publishers that are currently in the works. Realistically, it represents about four years' full-time work for an SF writer. Extrapolating, I'd expect someone like Jane Yolen to have a pile of contracts two to three feet thick, like unto the Tor slushpile only less readable.

Editors lurking in this thread will be pleased to know that stuff I've sold since 1998 is All Under Control, and is now neatly filed alphabetically by title, except when it's a series or a multi-book or multi-item contract ... dammit, I need a relational database for this! Time to get the scanner and OCR package out and start digitizing.

Anyway, the relevance of this anecdote is left to the imagination of anyone who still thinks a fixed copyright term from first publication is appropriate.

(Remember, one of the goals should be to reduce the bureaucracy, not increase it.)

PS: Given the price of housing in Edinburgh I'm really glad I mostly operate paperless, to the point of emailing novel manuscripts in to my editors without them ever touching paper first. If I worked on paper drafts and retained everything, each year's output of interim drafts, copy edited drafts, and proofs would fill maybe six shelf-feet.

Ray, have you read John C Wright's "Golden Age" trilogy?

Impressively enough (well, impressively to me, anyway), I've never even heard of it.

Charlie wrote:
> Anyway, the relevance of this anecdote is left
> to the imagination of anyone who still thinks a
> fixed copyright term from first publication is
> appropriate.

I can only counter your anecdotal evidence with the fact that US copyright terms were fixed terms from 1790 until around 1970. Nearly two centuries of magazine articles, short stories, novels, and whatnot and everyone seemed to manage somehow. I also submit that works-for-hire have always been fixed-term duration, and someone has managed to keep track of those rights even today.

The basis of my argument is "This is a fair trade between what the public gives up to the author and what the author invests in his work which eventually goes back to the public"

Are you arguing that 40 years is not enough to be fair to authors? or are you saying it would be fair, but it's just too much paperwork to keep track of? Or are you simply throwing up roadblocks to keep writer-subsidies in place, regardless of whether or not the public is paying too much for those subsidies? Right now, the public is paying too much with life-plus-70 year subsidies.

If you think 40 year fixed terms are fair, but just think it would be too much paperwork, then I'll just leave it to the tech-wizards to find a solution. an automatic, online, registration system ought to be feasable and managable.

If you think 40 years simply isn't enough time for someone to make back the time and effort it took them to write a book, then how much time does it take? you said you wrote 100 articles in a year? and after 40 years, you still won't make enough money from those articles to pay for your one year's worth of your time it took to write them?

The math doesn't add up.

Ray, the Golden Age books are pretty recent. Published by Tor within the past two or three years, should be all out in mass-market. Distant-future extropian SF. At one point a character needs to have the concept of inheritence explained to him, because permanent death is so rare most people have never needed to think about the after-effects of somebody dying.

Anyway, they also have never-expiring intellectual property rights. The wealthiest strata of society consists of the handful of people who own the rights to the most necessary technologies (like backup-and-restore ressurrection tech). And if you offend enough people you can be declared outlaw, and nobody will engage in commerce with you, which means you don't get access to those necessary technologies. This very thing, of course, happens to our protagonist....

I recommend them highly. They're wildly imaginative, thoroughly entertaining, and manage to be enjoyable even after the middle of the third book, when Our Hero announces that he's going to save the universe with the power of Objectivism.

Avram: that last word in that last sentence is, how shall we put it politely? Not encouraging me to read the trilogy.

I know; it was a warning. The encouraging part immediately precedes it: It manages to be entertaining even despite the Objectivism in the climax.

For what it's worth, the first two Golden Age books feature some of the best world-building I've seen in quite some time. These books have sensawunda to burn.

As for the rest... well, as Chad Orzel once said about another series, it would be a real shame if those two books were followed up by a third, in which hive-mind intellects on a planetary scale are made to bow to the superior wisdom of Ayn Rand. It's a good thing that didn't happen.

Charlie: do they rent flats by volume in Edinborough? I mean, if you needed four feet more for more books, could you send a note to your landlord and get it added on to your flat and your rent?

I'd have liked that. One could rent the smallest possible place to save up for when one would inevitably have to had more space to the apartment.

But how would you physically do that? reserve space in the building? Or extra dimensions?

Greg, your proposal ignores the way that things like book publishing actually work. When any given work can potentially make money forever, it's unnatural to prevent the creator from recieving that reward*.

Upthread someone mentioned that any solution to copyright is going to have to make corporate interests happy, as well as all the little folks. Another thing to keep in mind is the natural properties of the thing itself--if the new laws don't reflect that, then it will become as unworkable as, well, our current IP laws.

How fair is it to the poet who struggled just to get enough to eat for decades, to watch his poetry suddenly become immensely popular fifty years after he wrote it, and watch it incorporated into ad jingles and pop songs without a cent of it going to him?

Comparing writers to inventors is another false analogy--even once you come up with the idea, you still have to make the thing, and thus it is subject to the laws of supply and demand. A twenty-year headstart in manufacturing, name-recognition and distribution is tough to beat; this is not the case in book-publishing.

*Obviously, books don't really keeping making money forever, nor is it a constant output--the metaphor that leaps to mind is radioactive halflives, but that's just me.

On another note, I agree with the person who argued that public domain stuff isn't really worth it to the studios--it has to be a monopoly to be worth it. Given that, it seems that post-humous rights might be a bad thing--in Jane's situation, the materials remain in the hands of people who care, but is that generally the case? Greedy grandkids seems a bit more statistically likely.

P.S. I'm curious about what happened to Philip K. Dick's copyrights. A few years ago, a slew of movies based on his stuff was released, and all of the books were reissued. Did someone sell his movie rights? Who owned them?

Lucy Kemnitzer:

The last time I was in Edinburgh, I did not see walls that could be moved like the ones in the film "Brazil." So I vote for extra dimensions. If I say any more on that, it turns into Math. Edinburgh is one of the most beautful cities in the world and, perhaps more than any other, gave rise to The Enlightenment. I also think that Charles Stross is right about Jane Yolen's contract pile, except I think it's somewhat bigger. Also, one must track all ones' writings which don't get published, but might someday. Sure, I have roughly 1,200 publications, presentations, and broadcasts to my credit, and on the average, each one had or has a cubic foot of hardcopy reference material for research, but I still have over 1,000 unpublished manuscripts. I filled up, in the past 2 years, another 8 foot x 8 foot x 16 foot storage shed with books and papers. I'll be happy when everything is scanned and online. I think my wife will be happier than that. More of our 11-room house would be available for her entertaining and decorating if less of my stuff was in it. So again, I vote for extra dimensions. Our damage from the record rainstorms in Southern California is relatively minor. We had, in this neighborhood, in the foothills of the San Gabriel Mountains, roughly 24 inches of rain in 100 hours. So extra dimensions, with good flood control and firewalls, please. Jane Yolen's neighborhood, on the other hand, has been known to have serious snowfalls in May.

Charlie, back up there, wrote "Stallman is an anarchist (and not a libertarian like Eric Raymond)".

Over recent weeks' blogreading, I've started to get confused again, where I thought I'd eventually figured out what US people meant when they talked about liberals, libertarians, & so forth.

Can anyone direct us confused non-political-science graduates to some places that would give good definitions & differentiations between various assorted descriptions of such beliefs, ideologies, 'wings' or whatever they are? Where would you place, e.g., Robert Heinlein in this continuum?

Epacris: Heinlein was a facist! It's obvious, I just read Starship Troopers and...

Well, that's the stupid troll response done with, so here's a snarky and probably less-than-accurate answer; someone will be along and tell you where I was wrong (everywhere) and how (in every way):

Anarchists don't believe in the state; they can be either left-anarchist (believes in the inherent goodness of people) of various stripes, which I have never understood, or right-anarchist (believes in the inherent goodness of markets). This is of course an extreme simplification, and terms like "left" and "right" aren't quite applicable.

Libertarians tend to be on the rightward end of the political spectrum in some ways; small (but still some) government, emphasis on freedoms. There's also Libertarianism, which is a political party, which shouldn't be confused with small-l libertarianism, except for the fact that most Libertarians are (some form of) libertarians. There's also a spectrum of "how much should the state be allowed to do?", with answers running from "diplomacy and barely that" to "national defense, some large-scale infrastructure, and law enforcement" (and a ways beyond at both ends).

Objectivism is, as I understood it, a flavor of libertarianism.

Liberals are the boogeymen under the bed now that the COMMUNIST menace is mostly gone, or at least won't overrun Western Europe next week, with the extra bonus that the concept is nebulous enough that you can point at someone and cry "liberal" and find some support in their utterings unless they're somewhere rightward of Tom DeLay and Grover Nordquist. When people describe themselves as "liberal" on the other hand, they tend to mean don't want to intrude into peoples' bedrooms, see civil liberties as highly important (insert gnu control flamewar HERE, and let's leave it at that), and don't necessarily see government as eeeevil.

This is rambling and probably incoherent, and I blame lack of sleep. Sorry 'bout that.

Not only had I promised to be quiet, we were about to embark to Scotland. So here I am, in St Andrews, in the midst of gales so wild they blew my husband's glasses off his nose and halfway across the Safeway parking lot.

Just to answer Will's question: I favor a death + 50 years. I think 75 excessive. And I firmly believe that individual creators should be treated better than corporate entitites, but then I would--wouldn't I!

Jane
author of 270 published (and about to be published) books and uncounted stories, poems, essays quite certainly double that.

Jane: Peak wind speeds hit 120 miles per hour. Lots of roads, railway links, ferries, bridges, and (naturally) airports are closed. Worst gales I can remember since I arrived here in 1995.

And in about half an hour I've got to lug a cat carrier, complete with feline occupant, a quarter of a mile down the road to the vet for her annual check-up. Happy joy.

(No, Lucy, driving is not an option: there's no legal parking outside the vet's, and with cars routinely double and triple parked on my street -- it's just outside the central controlled parking zone -- parking spaces are like gold dust. And funnily enough, the architects didn't design garages into these flats when they were designing them in the 1870's.)

Back from the vet. Frigg wants everybody to know that she hates hail, and thinks the appropriate term for copyright is the duration of the author's cats' lives (all nine of them). At least, I think that's what she wants: she's hiding at the back of the bedroom closet right now.

(I'd back life plus fifty at a pinch: it's a lot easier to defend that life plus seventy or life plus ten. Although I still think life plus X where X is shorter than fifty but optional extensions are available would be better.)

Heresiarch wrote:
> When any given work can potentially make money
> forever, it's unnatural to prevent the creator
> from recieving that reward*.

If I copyright the word "the", and charge everyone a penny everytime they use the word "the", I could make money forever, and it's unnatural to prevent me from recieving that reward?

The reason you can make money is because copyright law gives a monopoly on your work. As long as that monopoly is in place, you can make money. But then you argue that if you can still make money, you should be able to keep the monopoly.

This is EXACTLY the argument that Disney uses to keep extending copyright terms every time Steamboat Mickey is about to go into Public Domain.

"We're still making money on Steamboat Mickey. If you allow it to enter PD, we won't be able to make money on it, and it's unnatural to prevent us from making money on the thing we created."

It's circular, self-fullfilling logic.

What I'm saying is that the Public pays the author by giving the author a monopoly on his work for a limited time, for limited rights. That monopoly should be long enough to give new authors incentive to take a chance on creating new works, and should be on par with how much energy it takes to create the work with a multiplier for profit margin and a game-theory-strategic-move that it be long enough that other people don't simply do an end-run around it and wait until it expires. 40 years or so should be long enough for any author to make back the time and effort they put into their work.

The rights and duration of the monopoly must be based on the amount of work the author puts into it, NOT whether or not the author can still make money if the monopoly is extended a little more. A monopoly, by its very definition, means you can make money.

> Another thing to keep in mind is the
> natural properties of the thing itself--

yes, the natural "properties" of intellectual works is that they are not "property", they are public domain, as is any idea or invention. You can put Hamlet in your latest sci-fi story and not pay Shakespear's great-great-great-grandchildren because ideas are naturally reusable. Shakespear made his money on his works. Now he's had enough, and everyone can use his stories and characters.

If terms were long enough, his heirs even today could be cashing in on all the movies and novels and short stories that use shakespear's characters. But that isn't "NATURAL". What is natural is that Shakespear get a chance to make enough money to make a living as a writer. That all writers get a monopoly on their work that is long enough to make a return on their investement of time and effort in creating the work. After that, it's unnatural and unfair.

> How fair is it to the poet who struggled
> just to get enough to eat for decades, to
> watch his poetry suddenly become immensely
> popular fifty years after he wrote it,

'just enough to eat'?

wow, could you mention that his wife died and he's got eight children to feed while you're pulling all these emotional heartstrings?

If the guy's work is something that readers will pay money to read now rather than wait fifty years to read it for free, then your starving widower will get paid.

There will ALWAYS be the argument of "current terms are too short. Poeple will just wait until the work enters the public domain to read it so they don't have to pay the author. Terms need to be longer"

If no one wants to pay to read his work, then 50 years or 150 years won't make a difference. he'll still be your poor starving writer with 8 kids to feed.

If terms were 5 years, then yeah, I could imagine people thinking "I'd pay for it, but it's going to be public domain soon, so I'll just wait it out".

But if someone is willing to wait 40 years to buy a book for $4 instead of $14, then the book can't be that good.

> Comparing writers to inventors is another false
> analogy--even once you come up with the idea,
> you still have to make the thing, and thus it
> is subject to the laws of supply and demand. A
> twenty-year headstart in manufacturing, name
> -recognition and distribution is tough to beat;
> this is not the case in book-publishing.

I'm aware of the differences, and the analogy still applies.

Patents are much more strict than copyright in the rights they grant the inventor. There no such thing as "fair use" for patents. You use an invention idea, you gotta pay the patent holder. This is balanced by patent terms being much shorter.

Copyrights do not grant the author as many rights as a patent grants an inventor. Fair Use is allowed. You can copyright your mystery novel, but you cannot copyright the idea behind all mystery novels. Because of this, and because the cycle from book to movie to dvd can be long, the terms should be longer. 40 years ought to be enough.

patents = strict rights * short duration
copyright = fewer rights * longer duration

Both work out to giving the creator a monopoly of approximately the same possible value.

The specifics are different, but the idea is the same. you give the creator a monopoly with enough rights for a long enough time that they can make money on it.

If you put so much work into a book that you can't make a return on your time and energy until 70 years after you die, then there is something seriously out of whack in the law of conservation of energy.

the monopoly the public gives to a writer for a book should relate to the amount of energy the writer put into creating the book.

I would not suggest that you drive. I would elaborate on that, but I fear getting too much off topic. Anyway, I think your approach to copyright is the one most likely to actually protect the author's interests and their children's, and at the same time keep DIsney from owning everything.

You know, A.P. Carter copyrighted everything the Carter Family sang, even things well over a hundred years old, but in those days that was ignored roundly. Who owns those rights now? Did they expire gracefully before the Disney law? (yes, Sonny Bono's widow said it was all about her, and shed tears to prove it, but she was a stalking horse for Disney) Increasingly, people don't want to even try to find out: because increasingly, stuff that had already passed into the public domain suddenly has a copyright on it, held by some corporate entity with no interest in re-issueing it. And since fair use has all but gone out the window, you can't quote -- even in reviews and scholarly works.

Re: the analogy between Copyright and Patent.

Inventor of Blue LED gets 190 million

Charlie, despite the flaw in the ending, the Golden Age books are some of the most fun I've had with a recent SF series in a decade or more. Enough gosh-wow sensawunda to thrill your inner 12-year-old, and enough clever, well-worked out world-building to astonish your inner 20-year-old SF geek.

In recent years I've been favoring simple fixed terms for copyright, one renewal, period. I do so partly because I think it's a way of defusing some of the arguments like Will and Jane had above. No, really.

We all agree, I'm pretty sure, that nearly all works make nearly all the money they're going to early on - well within the original 14 years of US law. And many (I don't know what fraction) of the remaining handful make the rest of theirs within 28 years. So far, so good. But then there are people like Jane here, and Asimov, and so on, who have long productive careers to look at.

It's not clear to me that the loss of exclusive control after 28 years would really mean losing much in the way of income. What we'd see, I believe, is a fresh wave of "only authorized edition" and the like emblazoned on covers and used in advertising. "This is the one the creator endorses", put in various ways. Sure, some people will buy cheaper unauthorized editions. But then some people will always buy the cheaper one. I suspect, though of course I can't prove it, that it would have very little effect at all on sales that generate any revenue the creator gets to see.

With a fixed term, the question of a creator's longevity no matters when it comes to use of the work. And that's right and proper - it shouldn't. Once released, the work is an entity of its own, and should be subject to consistent, predictable legal handling.

What we'd also see is more emphasis on other ways of making money, outside of licensing the original work. Having one early piece of work suddenly turn popular will tend to drive up interest in other, more recent, work, right? And open up possibilities for paid essays, lectures, etc, right?

Charlie, why is death plus 50 easier to defend than death plus 10 or 70?

My current, increasingly nebulous thoughts on the issue are that we should go back to the UK Statute of Anne/US Founders' copyright of 14 years, only make it infinitely renewable. I'm not crazy about letting someone milk the Mouse eternally, but it really doesn't put much of a crimp in my creativity. At least, not so long as I can do something like Rudy Rat to make the same sort of point I might want to make with Mickey.

Anyone know if anyone's fighting the copyright war by focusing on fair use? I once paid $100 to use snippets of Yeats that were in the public domain everywhere except the US. Copyright profitting anyone other than a creator has infuriated me ever since.

Charlie, why is death plus 50 easier to defend than death plus 10 or 70?

My current, increasingly nebulous thoughts on the issue are that we should go back to the Statute of Anne/Founders' copyright of 14 years, but made infinitely renewable. I'm not crazy about letting someone milk the Mouse eternally, but it really doesn't put much of a crimp in my creativity. At least, not so long as I can do something like Rudy Rat to make the same sort of point I might want to make with Mickey.

Anyone know if anyone's fighting the copyright war by focusing on fair use? I once paid $100 to use snippets of Yeats that were in the public domain everywhere except the US. Copyright profitting anyone other than a creator has infuriated me ever since.

Will: infinitely renewable

I'm not sure how infinitely renewable would work other than to allow the Disney-ites of the world to keep Steamboat Mickey as a proprietary work until the heat death of the universe.

It doesn't occur as a balance to me.

Did I miss something?

Re: writing, and having to keep track of copyrights, editions, contracts...

"People say a bank clerk's life is monotonous, but it is nothing to compare with a novelist's."

-- V. S. Pritchett, as we are reminded in "V. S. Pritchett: A Working Life", by Jeremy Treglown [Random House, 334 pp., $25.95]

Infinitely renewable might not be so bad if the renewal fee was large enough. If this is "property" (a metaphor which I'm not convinced is really appropriate), then property taxes should apply. Greg's right that IP should strike a balance between creator's rights and common good, and extracting rents from creators is one way to do that.

Greg said: "If I copyright the word "the", and charge everyone a penny everytime they use the word "the", I could make money forever, and it's unnatural to prevent me from recieving that reward?"

See, I was talking about creative work, you know, things that can be copyrighted, but if you'd like to talk about something else entirely, be my guest. This might be the wrong thread though.

Since you didn't like my starving poet, here's another example: author Bob A. Bob A has been working in the field since he was a young man, steadily churning out work since his twenties. He's made a respectable living, and now he is an old man of 70. Last year, some of his earliest copyrights expired, and studios began production on an adaptation of his first novel. It is a horrid butchery. However, there is nothing he can do--his rights expired. The studio has made tons and tons of money trashing his reputation, but he can do nothing to prevent it happening again and again as the years go by. See a little more clearly what I am getting at? Lifetime of author seems sensible because an author is concerned with their own work in a way that no one else can be--its a unique relationship, and I think deserves to be treated as such.

"A monopoly, by its very definition, means you can make money."

No, a monopoly, "by its very definition" means that you have exclusive rights to something. Whether you can make money is dependent on whether anybody wants what you have. Having a monopoly is, however the only way that creators of intellectual property can make money.

This isn't the case for inventions. Even if everyone in the world starts making something I invent, I can still make it too, and sell it. It is being forced to compete against entrenched competitors that makes copyright necessary, to give the inventor a competitive edge.

"the monopoly the public gives to a writer for a book should relate to the amount of energy the writer put into creating the book."

So if I write an immensely popular and wildly sucessful book that takes me two days to finish, I should recieve less of a reward than someone who slaves for years over her book? Persuasive.

I've got to mostly agree with Heresiarch on content, although not necessarily on sarcasm. One can't copyright "the" -- but you can have a pop group called "The The." Further, "monopoly" has a technical definition, but nobody seems to like my speaking hypertechnical Economics, so I'll let that one go. The confusion between patent and copyright and trademark is profound but, again, if I start quoting IP law as if a lawyer (instead of a paralegal and IP consultant with over 15 years experience), I won't help reach the truth here. I agree that the amount of energy or length of time to create the work has no logical bearing on the issue. Should we condemn Simenon for dashing off a novel in 3 days locked in a hotel room with a prostitute and a case of wine, if that novel is brilliant, or hold it against Asimov that he could write 20,000 publishable words in the afternoon after visiting his daughter in the hospital? Of course not. Nor is a novel that someone has slaved over for 20 years and 100 drafts worth any more than the market will determine. Many people have been making very cogent points here. Why mess with straw man arguments?

Greg, I hate the idea of Heatdeath Mickey, too. But I think you're better off fighting battles that you have a hope of winning (says a guy who's almost always happy to fight ones that he knows he'll lose). Big business wants big bucks from big properties. Let them have them. I'm far more concerned with the obscure stuff that's locked away by copyright because no one knows how to find the owner or the owner is too unreasonable to deal with. 14 Infinitely Renewable means a short copyright period so that most things can fall into the public domain quickly, yet Disney can be happy because they'll have their rat. You could slow down copyright speculation by increasing the registration fees with each renewal: doubled, then tripled, then quadrupled.... The first fees could be very low, and the later, big ones could pay for the registry and other services to promote art.

Speaking of Disney, they do have ways to inhibit public domain art, too. My wife and I wrote a William Tell script that had a day or two of buzz, until the word went around that Disney already had a Tell script in their library, theoretically as (I kid you not) a vehicle for Arnold. No one was likely to start production on a Tell film knowing that they would butt heads with Disney. At least, not without some major players on board. (Baseball players on ships! I love the cliches of Hollywood speech.)

They're wildly imaginative, thoroughly entertaining, and manage to be enjoyable even after the middle of the third book, when Our Hero announces that he's going to save the universe with the power of Objectivism.

<cheapshot>Aha! So it's a fantasy, then.</cheapshot>

What we'd also see is more emphasis on other ways of making money, outside of licensing the original work.

I think what we'd see in the event of a return to a short fixed period is the expansion of trademark law and possibly even patent law to fill the moneymaking void left by the retreat of "To Infinity and Beyond! ®" duration copyrights.

After all, if you can patent a software algorithm, it's nothing more than a hop, skip, and a fall down a long flight of stairs to get to the notion of patenting plot devices, or trademarking not just character names, but also, say, specific sets of character relationships — all designed to prevent derivative works being made from popular and lucrative, but recently out of copyright, books and movies.

Will: life plus fifty is a step in the right direction relative to the current state of life plus seventy. And it's long enough post mortem that the "but what will the starving orphans live off?" argument doesn't hold water. (If you leave a newborn baby as your heir, few people will argue that it should still be living off your work when it turns fifty.) Reduce that to life plus ten and you'll run up against starving-baby arguments and, whether they're right or wrong, they're certainly effective at stirring up an emotional shit-storm.

I tend to take a pragmatic view of things. I'll settle for what I can get, one step at a time. (This leaf was stolen shamelessly from the current loonie right playbook.) The goal is to reduce the degree to which copyright terms trample on the commons, preferably without destroying the ability of writers and artists to earn a living. Any step in the right direction is therefore to be welcomed, unless it comes with a poison pill.

Heresiarch wrote:
>
>"the monopoly the public gives to a writer for a
>book should relate to the amount of energy the
>writer put into creating the book."
>
>So if I write an immensely popular and wildly
>sucessful book that takes me two days to finish,
>I should recieve less of a reward than someone
>who slaves for years over her book? Persuasive.

I never said terms should be different for every work. My point was to find the work that takes the longest amount of time, the most money, time, and effort to create, and set terms to THAT yardstick.

As far as I can tell, the longest cycle would be book to movie to rentals to merchandising. A novel could take several years to write, but probably only a handful of people would be involved. But then add a couple years for the book to get out into the public and popular and the best-seller list. Then a movie studio gets interested, and that takes many years and several hundred million dollars to create. It's in theaters for a year, and goes into rentals for several years. Then there are toys and merchandising, which will be selling for a few years. For a story that takes time to get popular and and takes time to get discovered and takes time to get made into a movie, that should be about 20 years. Then if you double it, that should prevent everyone from deciding to just wait out the copyright terms and wait for it to enter public domain.

A 40 year monopoly ought to be long enough for the creators to make back all their money they put into creating their works and seeing it go through all the different mediums (book, movie, toys).

This should also protect your author who wrote a book when he was 20 and enters public domain when he's 60 years old. He'll have control long enough to make his version of the movie while the terms are still active. Then, when the original book enters the public domain, if someone comes along and makes a horrible movie translation, the author should be able to point to his original movie and say "this is what I intended".

The idea is to cover the case that takes the longest to create and set copyright duration for all works based on that case. 40 years ought to be enough for the original author to control how his work is translated into all the various mediums. All works would then get a 40 year term, including that book you wrote in two days.

Ray,

Personally, I'm surprised no one has tried to buy enough politicians to get them to legislate a patent for plot devices.

Heresiarch, I notice you describe the film made of Bob A's early work as "a horrid butchery", but you also say that the studio "has made tons and tons of money". So it's a commercially successful butchery? One seen by millions of people? Some fraction of which might then be inclined to buy a book with "By the author of [name of earlier work]" on the cover?

And perhaps Bob A (or his agent) might be able to convince the studio (or another) to buy the rights to a more recent Bob A book, seeing as how this other one was such a success?

Greg: He'll have control long enough to make his version of the movie while the terms are still active. Then, when the original book enters the public domain, if someone comes along and makes a horrible movie translation, the author should be able to point to his original movie and say "this is what I intended".

I thought the book was what he intended.

Avram,

Heresiarch said "studios" and "adaptation" which meant to me a movie studio making an adaptation of the book. I could have misunderstood.

The other thing you point to is the "tons of money" bit. If ANY book could make "tons of money" in an adaptation 40 years after it's published, how come it can't make similar tonnage of money while copyright is still active?

an author of a novel gets a pittance for movie rights when compared to a total movie budget. It seems highly unlikely that a movie producer would have a conversation like this:

"we'll make hundreds of millions of dollars if we make the movie now, but we'll save a quarter-million dollars if we wait until copyright expires and we don't have to pay that tight-wad Bob for the rights to his book. So, I think we'll just put this movie off for another 40 years or so."

Heresiarch's "what if" scenario seems to have stacked the deck unfairly.

If a tonnage of money is possible in 40 years, why wouldn't someone be interested in making a similar tonnage now?

And how many people would actually watch a bad adaptation of "Romeo and Juliet" and blame Shakespear? That concern seems unfounded and misplaced.

Greg, I made pretty much that same argument way upstream, in a reply to Jane. "In fact, the more money a company has, the less likely they are to regard having to license a work as an obstacle. [...] If I'm a movie studio with a budget of hundreds of millions of dollars, the inflation involved in waiting five or ten years will probably cost me more than just paying you a license fee now."

"I think this is probably a not a good time for irony, and this too serious to laugh off. Gates is a powerful man, and them's fightin' words."

A little irony goes a long way. And the Soviet flag / Constructivist parodies were funny and appropriate for the audience they were intended to reach; a way of saying, Hey, Look at this! without going into full scale panic.

But now that they have your attention, it's time to step beyond the humor that seems to take too lightly Gates' comments. Because his comments are fighting words, as I said here. He is a powerful man, one who, with his statement, indicates his intention: to paint advocates of copyright reform and open source as a threat to state interests. In the current political climate, you can see where this might lead . . . .

Avram,

Yep. You did. I forgot. Now remember. Think better. Gooder English.

;)

Alex wrote:
> Infinitely renewable might not be so bad if the
> renewal fee was large enough. If this
> is "property" (a metaphor which I'm not
> convinced is really appropriate), then property
> taxes should apply.

See, the problem is the basic assumption of the metaphor.

intellectual works are naturally public. But rather than treat them as public, the public makes a deal with the author/inventor: we'll give you exclusive rights to what you create for a while so that you can pay for the work you put into creating it and so other poeple have incentive to try creating stuff too.

The threshold of this monopoly is the minimum amount of rights and duration such that people are still encouraged to write and invent.

The government then acts as record keeper for registering works and arbitrator for when fair use questions arise.

Allowing infinitely renewable terms with "property tax" fees flips the metaphor on its head. Rather than finding a balance of what the public surrenders to the individual creator, this system ignores the public completely, and creates a feedback loop where the government makes money as long as rights-holders make money.

You can see where this has lead with Microsoft being convicted of anti-trust behaviour and then buying a ruling to have the judgement overturned. You can also see what happens when Disney and Microsoft donate tens of millions of campaign donations and the DMCA is passed, the CTEA is passed, etc, etc.

The government then relates to intellectual property taxes as "kickbacks", getting rewarded the more money an author makes, and therefore getting encouragement to make sure the authors keep making money.

The rights surrendered by the public to the creator then keep getting bigger and bigger, more and more expensive, so that politicians can keep getting their cut of the profits.

What rights do an author or inventor deserve?

It's a barter between the public and authors and inventors.

The public should set the rights and durations to whatever level is sufficient that new artists and authors and inventors will write and invent new works.

The public sets a price (rights and duration) and if no one is interested, then the price is too low. If we lower the terms to 40 years, writers will still write, musicians will still make music, because they'll still be able to make a profit.

Will Disney and MPAA and RIAA complain? Sure because they've been on the corporate welfare, the copyright subsidies since the 1970's, making far more money than they deserve because the public granted them far more rights and for far longer terms than they deserve. And they're going to complain if anyone tries to take away their cash cow.

But if terms were 40 years, writers would still write, musicians would still make music, directors would still make movies. So why should the public pay so much more than that by setting terms to life plus 70?

If this were a discussion about farm subsidies, a lot of you would flip your positions and be against farm subsidies. But in the world of copyright subsidies, you're the farmer getting subsidies paid for by the public.

If the rights and terms granted were enough to encourage writers to write and inventors to invent, why should the public pay any more?

I'm not sure what the game theory model is to describe this. I was thinking its a cake-cutting model, but it's some kind of group versus individual haggling system, where the group sets the price just high enough that individuals are interested.

I'm not a game-theory wizard. Is there a model for this?

It seems to me that there are three component topics at hand here: one about copyright, one about the inherent risks of humor and satire, and one about how the defanged left (or anyone else) could respond to attempts by The Enemy (whoever the enemy is) to re-define it.

The copyright discussion is a complicated one, and I leave it to others.

The exchange about the risks of humor was completed gracefully and economically in the first hour and a half, when, admonished by Patrick, Xeni acknowledged that maybe the joke was ill-advised. Humor has to take risks, and sometimes it goes off in the wrong direction. Sometimes the tongue is faster than the teeth.

The third topic has not been fully addressed. As others have said, Patrick is absolutely right in suggesting that we shouldn't help The Enemy marginalize us. In addressing Xeni, he was talking about Bill Gates, but the discussion of wrapping oneselves in the flag, etc., references a larger struggle going on, in which the Radical Right has succeeded in repositioning the Moderate Left (formerly known as the Middle of the Road) as leftwing fanatics.

The Democratic Party's failure to control how the country perceives them, not the failure of the Left as a whole, that has allowed the Right Wing to manage how the country as a whole sees both the left and the right. I see this minor joke at the expense of Create Commons as being emblematic of an approach that has done the Left a lot of harm.

Patrick? What do you think?

I'm not a game-theory wizard. Is there a model for this?

Duh. I just realized, that it's a modified "bounty system". The public offers a bounty of rights for a period of time to any writer/inventor. The individual can then use that bounty to try and sell their writings/inventions.

If the bounty is too low, no one will collect. If it's too high, it doesn't mean the public will find higher quality bounty hunters, it just means they overpaid for the job.

In the bounty hunter frame, I say the public could lower it's bounty for writings to 40 years and still find enough bounty hunters to do the job.

Greg says: If this were a discussion about farm subsidies, a lot of you would flip your positions and be against farm subsidies. But in the world of copyright subsidies, you're the farmer getting subsidies paid for by the public.

I don't think so. Farm subsidies are increments to income; you're talking about when to take away \all/ income. And I think you'll find that published authors are not the only ones arguing in favor of long copyrights in this thread.

CHip,

The "bounty hunters and bounties" frame seems to be the most accurate representation of writers and copyrights.

I could reply inside the "farm subsidy" frame, but it isn't quite as accurate of a frame as "bounty hunters". a farm is real property whether the subsidy exists or not. a bounty exists only if it is offered. A writer is paid for their service rendered in creating the work. A bounty hunter is paid once for the service of bringing in a bad guy. After they're paid, everyone enjoys the results of having one less bad guy running around. It becomes a Public Domain benefit. farm subsidies are generally paid to keep farmers in business lest we lose farming property and havae it turned into developments. Copyrights should only be extended as a bounty to reward a writer for the work (service) they provide the public. There is NO point in keeping bounty hunters hanging around when there are no bad guy, there is no point in offering a million dollar bounty for a one-time purse thief. There is no reason to offer life-plus-70 terms when writers can write and make a living on 40 year terms.

The only way copyright and patent rights are constitutional are if they "promote the progress of science and useful arts". They are not constitutional if they only serve the purpose of subsidizing writers or propping up Disney's stock price.

Bounty Hunter is a much better frame.

"120 years ago, my great-grandfather brought Bad Bart to justice, and I should be able to keep collecting payments on that bounty. You all are benefiting from Bad Bart being off the streets, so you should pay royalties for that."

You don't pay a bounty based on how much the result is worth. You don't keep paying a bounty every year because you want to keep Bad Bart off the street. You pay it based on how much it costs to catch Bad Bart. And the cutoff should be the minimum it takes for people to make a profit enough to make a living at it.

When you talk about farm subsidies, it's a completely wrong frame. Copyright is not a welfare system for writers. It is a bounty system to reward those who "promote the progress of art and science". And the public should set the bounty as low as it can to accomplish that goal.

Writers (inventors) are Bounty Hunters
Copyrights (patents) are a Bounty system

It's a nearly perfect frame to describe the system.

Jim Kelly's February Asimov's column is about copyright. Of course, it's not up on the website yet.

Peter Pan's publication date: 1902
Peter Pan's first movie adaptation: 1953
Peter Pan's latest movie adaptation: 2003 (or 2004)

Fellowship of the Ring's publication date: 1954
Fellowship of the Ring's first movie adaptation: 1978
Fellowship of the Ring's latest movie adaptation: 2001

Acting as though the book-->movie-->video cycle is somehow quantifiable into some precise number, especially one as low as 20 years, is a little silly.

Now, about bounty hunters:
I know you are quite taken with the idea of frames and suchforth, but there's something you seem to have missed--all frames are inherently false. This is even more true when you are using a blatant, straight-out metaphor like your bounty hunter thing. Frames are useful in making people see things in a certain light that they may not otherwise notice, but they are not the same as the truth. What we are trying to do in this argument is, as near as language allows, to find what the truth about this system is, and what solutions the nature of that system suggests. After we've done that, then we find frames.

Frames are not the basis for argument--logic is. Frames are what you use to make your argument make intuitive sense as well as logical sense.

That being said, some of your logic-based arguments did persuade me. You're right, simply because a monopoly is the only way to make money from creative intellectual work doesn't give them the right to get that money forever. But still, the spectre of the movie adaptation haunts me. I don' have a good solution, but here are my thoughts on it:

begin braindump
Just because all sorts of property rights come in a big package doesn't mean they have to--what if the rights to reproduce the actual work lapsed after a reasonable time (when most any conceivable profit from publication has run its course), but the rights to derivative work remained with the author longer? Also, a system where the author has non-transferrable rights that always revert to the public domain after some period of time. For example, the author can sell a studio movie rights to a story, but only for a period of twenty years, after which things return to the author or to the public domain.
end braindump

Heresiarch: simply because a monopoly is the only way to make money from creative intellectual work

It's not. It might (or might not) be the best way, but it's not the only way. Patronage is the traditional model, used for millennia before copyright was invented. Awards are another; the first synthetic ultramarine pigments were created to win a prize. Kelsey and Schneier's Street Performer Protocol -- the artist creates a work, but doesn't release it or only releases a sample portion; interested parties contribute money to a fund; when enough money is collected the artist releases the work into the public domain -- is another possible method. And there's always just plain selling physical objects, which doesn't work for everything, but does for some things.

> Peter Pan's publication date: 1902
> Peter Pan's first movie adaptation: 1953
> Peter Pan's latest movie adaptation: 2003

Since movie theaters didn't appear until 1910 or so, it seems a little unfair to expect the turn-around time from book to movie to be like it is today, when theaters specifically for viewing movies didn't even exist when the book was written. talkies and the "golden age of Hollywood" wasn't until 1930.

So, from the time when you actually had movie studios that could crank 'em out until the point at which peter pan showed up on film was about 20 years (1930's to 1953)

Lord of the Rings, don't know what the excuse for the delay was other than that any producer looking at it would see that production costs for it would be HUGE and it wasn't a "serious" movie like "Ben Hur". Also, not exactly sure what the history is, but I'm not sure how many Trilogies existed before StarWars starting in 1977 ending in 1983, which might have scared some producers off as well.

I'm talking about the CURRENT situation. You've got a handful of CGI houses that can do complete movies on computer and whatever number of production companies to do live action films, plus independent filmmakers galore.

The longest current delay for a "modern" conversion of book to film would be "Hitchhiker's Guide to the Galaxy". It was a radio series in 78, a book in 79, a TV series in 81, and it looks like the movie will finally come out in 2005.

That's about 25 years. I went to a book signing by Douglas Adams sometime around 1990, and I believe he said there had been several attempts to make a movie that had been aborted for various reasons that had nothing to do with the book, but more to do with logistics of getting actors and sets and budgets all in alignment.

I don't think copyright terms should be set to cover the absolute worst-case scenario, be it Peter Pan, Lord of the Rings, or Hitchhikers.
Especially when those scenarios involve problems like talkies haven't been invented yet (PP), production costs would be monstrous and would yeild a non-standard movie of the time (LoTR), or they kept trying but logistics got in the way (HH).

Besides, that's not how the Public SHOULD set a bounty. If it is set to 40 years and people are willing to write to collect on that bounty, then why should it be set to 50 because some writer says "we can't do it in that short a time"?

If you set the bounty for Bad Bart to 10,000 and someone brings Bart in for that much, why set it to 20,000? Sure, sometimes a bounty hunter might end up having more expenses that 10,000 because of bad luck, Bart being a sneaky devil, and unexpected tollbooths. But next month, when Evil Eve needs to be captured, and a 10,000 bounty is enough to get some other bounty hunter to bring her in, why set the bounty any higher?

If people will create books and movies and music with a 40 year term, why make it longer?

A quick remark on Peter Pan, from memory. It was originally a play, became very popular, and was published as a book. Don't know timeframe. It stayed as a popular perennial production for decades.

But I wonder if there was much problem (like Shakespeare & others had) with 'pirate' <ahem> versions being performed? Slightly modified, perhaps.

In such pre-movie*, pre-radio* and pre-television days, plays, music hall/vaudeville and, in some cultures, opera were more frequently popular entertainments than they tend to be now.

[*Don't pick nits on me here. They weren't big until 1920s & beyond.]

A quibble: Movie studios existed in Hollywood from the 1910's, were perfectly capable of adapting popular books, and in fact did so: The first adaptation of Peter Pan was made in 1924 (with heavy lesbian subtext, yet). Also, Ben Hur was always seen as a big historical potboiler, not particularly "serious."

That said, the "excuse for the delay" in LotR's adaptation was that the technology hadn't caught up with it, fantasy was widely perceived as dumb, and everybody thought it would hemmorhage money. Remember the first adaptation was a bad animated movie. It took about 50 years for popular conceptions and special effects to make it possible. In other words, the book>movie cycle is indeed impossible to predict. The Iliad just got done recently, for instance; so did Four Feathers for some reason.

Another thought about public domain vs. copyright in adaptation: Disney has of course made a lot of their money adapting stories in the public domain, and then viciously protecting their own "property." Some of those stories, like Treasure Island, I think would never have presented themselves as viable models for adaptation if they hadn't been around in the public domain for quite some time, so that people were still aware of them through other adaptations, retellings, etc. Charlie Stross is right that most works in copyright are out of print, and therefore forgotten. Public domain is a way of keeping those works alive longer. TO me, this is an argument for more limited copyright terms, like 10 or 20 years after death.

--all frames are inherently false. This is even more true when you are using a blatant, straight-out metaphor like your bounty hunter thing. Frames are useful in making people see things in a certain light that they may not otherwise notice, but they are not the same as the truth. What we are trying to do in this argument is, as near as language allows, to find what the truth about this system is, and what solutions the nature of that system suggests. After we've done that, then we find frames.

Great point. I agree and disagree. I've always been inclined to agree with the nursery rhyme that says reality is the elephant and people are the blind men describing it.

Truth though, is not the same as reality. Truth implies meaning. Meaning requires a frame. I think there's a bit of chicken and egg thing going on with truth and frames.

Logic is good, as long as the axioms are sound.

mayakda:

I agree with you that "Logic is good, as long as the axioms are sound." I also agree with heresiarch as to the goal to "find what the truth about this system is." But Logic is not enough.

The problem is in general -- and in this fascinating thoughful discussion -- there are at least 5 inherently different notions of "truth." Each has its own procedures for "proof."

(1) Axiomatic Truth, with axioms and rules of deduction, wherein any 2 people regardless of cultural background can arrive at the same conclusions. Example: Euclid.

(2) Empirical Truth. Trial-and-Error as the weak form, Scientific Method as the strong form. Limited by paradigm, data, instruments. Einstein's truth, exactly 100 years ago, replaced Newton's truth.

(3) Politico-legal Truth: Bush was elected, so claims a mandate. When a jury says "not guilty," the murderer walks free, and goes off to play golf and "search for the real killer."

(4) Aesthetic Truth. The song/painting/novel is beautiful or ugly to you personally, regardless what the artist or crtitic says. This sucks but won a Hugo. He/she deserves a Nobel prize, but will never get it.

(5) Revealed/Religious Truth. If God speaks to you from a burning bush, or Jesus tells you to stop snorting coke and go ahead with invading Iraq, then it is true to you, regardless of what anyone else says. Allah revealed in speech to Mohammed, the anthology editors of the Bible assert revelation in print. We shall see a boom in online revelations.

Problem is, no two of these are the same, work the same, apply in the same way.

In this copyright discussion, and the politics of irony about it, we are stuck with an incoherent mixture of Empirical Truth about what seems to work/not work with intellectual property, Politico-legal Truth from the Constitution, Congress, courts, WIPO, and so forth; Aesthetic Truth as to the content, which helps determine its value; and Revealed/Religious Truth in cases such as Mel Gibson's Passion, unconstitutional stickers criticizing Evolution on textbooks in Georgia, many styles of censorship.

I don't think that these can be reconciled. If they could, the world would be a better place. And that's the truths, as I see it.

Got to say I don't like the bounty hunter metaphor. I don't hunt down stories. I make them. Yeah, it's an esthetic quibble, but esthetic quibbles are important when you're trying to win allies.

Okay, I'll fess up, sometimes I do hunt down stories. But I try to file off the serial numbers and give 'em a new coat of paint.

I'll agree with Will; if we simply must have a metaphor, creating property is more useful than bounty hunting, and for an important reason.

In the Lockean sense of property, land becomes your property when you mix it with your labor. So with stories: we take ingredients -- ingredients that are already out there in the world -- and we mix them with our creativity and sweat. The output of that process is, and should be, our property.

But note that there are inputs to this process. We are not merely balancing the rights of creators and the rights of consumers. Such a dichotomy is false and misleading. We are trying to find a solution that is best for the process of creation.

As noted above, Disney has profited greatly by using public domain content as input. They certainly added their own creativity and labor, and I would not begrudge for a second that Mickey Mouse is an original creation, even though it clearly was originally a parody of Steamboat Bill, a well-known character of the time (and so for Snow White, and the Hunchback, etc. etc.).

When we raise the cost of IP, which is one way of describing long copyright terms, we also make it more difficult to create.

The "bounty hunter" frame doesn't fit IP law exactly. No, you don't "hunt down" stories. It is not a frame to describe writing to writers. It is a frame to describe the public offering an incentive to any individual willing to take a risk to collect it. That is exactly how a bounty works. That is exactly how copyright works.

(1) The public sets the price of the bounty just high enough that it attracts bounty hunters.

The public should set the rights and duration of copyrights and patents just high enough that people will write and invent.

(2) having the most successful bounty hunter tell you how much they need to bring in a bad guy is ignoring possible competition from other bounty hunters.

Disney saying they'll go out of business if terms dont last at least 150 years is ignoring the fact that other people could make a living writing and creating if terms were only 40 years.

(3) Bounty hunters provide a SERVICE of catching the bad guy and should be paid on par with the time/energy it takes to do that service and make a living at it.

Writers provide a SERVICE of writing that promotes the arts and sciences and should be paid on par with the time/energy it takes to do that service and make a living at it.

(4) A bad-guy caught is a benefit the public enjoys FOREVER. That does not mean that if a bounty hunter catches one bad guy that he should be able to retire and cash in on that for the rest of his life, nor should his heirs be able to cash in on that one act for all eternity.

A writing/invention is a benfit the public enjoys FOREVER. That does not mean we should be paying shakespeare's heirs for DVD sales of Hamlet. Yes, people are still enjoying Steamboat Mickey, but that doesn't mean that the public should pay Disney with a term that lasts until the heatdeath of the universe.

Most arguments made by copyright holders are framed in a way of emphasizing the "benefit" of the writing. But taken to an extreme, the benefit is something that can exist for hundreds (Shakespeare) or thousands (greek mythology) of years. The public can't pay based off of the BENEFIT, because the benefit lasts forever. As long as the frame keeps focusing on the benefit, terms and rights will keep creaping out longer and longer.

The bounty hunter frame fits because it describes the bounty offered by the public to encourage someone to take a chance and perform a service. That service will create a permanent benefit, but the bounty is paid based on what it would take for a bounty hunter to make a living collecting bounties.

For all the flaws with the bounty hunter frame, they are mostly superficial. In framing the transaction between the public and the individual, it fits almost perfectly.

> if we simply must have a metaphor,
> creating property is more useful
> than bounty hunting

But it isn't property except because the laws makes it so. Physical property is a zero-sum-game. Intellectual works are not. The law for physical property should model its physical zero-sum-game nature. The law for intellectual works should include its natural non-zero-sum-game state.

Music especially does not model well based on the way physical property works. A musician puts in work to create a song. With Kazaa and various zero-cost copy/distribution structures, it has the potential to be immediately a public benefit.

But the Public decides that since no one can make a living as a musician if free copy/distribution is allowed, the Public decides that they will surrender their right to copy/distribute any song ahead of time as a promise to all song writers long enough that the song-writer can make money off it to make a living.

The song BECOMES property only because the Public agrees to treat it as such for a while. Othewise Peter Gabriel would record a song, and the web would deliver it to everyone for free, and Pete wouldn't make any money.

But if you pick a metaphor that treats music as PROPERTY, you're only looking at the period of time that the copyright term is active.

YOU CANNOT USE A "PROPERTY" METAPHOR TO DECIDE HOW LONG THE TERMS SHOULD BE, BECAUSE THE METAPHOR ONLY APPLIES WHILE THE TERMS ARE IN EFECT.

Any "Property" metaphor only applies while copyright terms are in effect. Once the terms expire, the work returns to its natural, public domain, non-zero-sum-game state.

A "bounty hunter" metaphor actually applies before, during, and after the terms are in effect. It fits the model before a work is created, when a writer takes a chance and tries to create some new work that is treated as property, and when that work returns to the public domain.

I would suspect the reason for a movie-maker, whether studio or independent, to wait until a book or short story was in the public domain to make the movie is not frugality, but the fact that the living author might not have been willing to say Yes. Would Asimov have gone along with this summer's I, Robot? Would Dr. Seuss have felt the need for Jim Carrey to impersonate The Grinch, with Chuck Jones's version in existence? Of course, in both those cases, the heirs sold the rights, but the thought still stands: an unwilling live author, in control of their rights, is hard to get around.

On another tangent, The Four Feathers has been made into a movie at least 5 times, plus a TV version; the earliest imdb.com lists was done in 1915. As for The Iliad, there may not be as many movies based on The Matter of Troy as on The Matter of Britain, but it, too, has been done before. Extras weren't always so expensive, and the bar for special effects wasn't always so high.

Greg, why abandon the commons for the bounty? The bounty analogy may fit, but it's not intuitive, and it's a bit insulting.

Though I must admit sometimes I think the stories are doing their best to slip their chains and get away.

I agree with Alex's last post, with the quibble that I don't like living in Locke's World. But so long as I'm stuck here, I'll play within the walls to survive while I try to push the walls back or bring them down.

Also, the people who'll change the laws are likely to be Lockeites. The debate has to be discussed in ways they'll grasp. (Yes, I often say to ignore the enemy's terms of debate. But the whole point of copyleft is to improve capitalism, not end it.)

I am sometimes surprised that the far right isn't arguing in favor of short copyrights, since short copyrights increase competition. Why should the US publishers who had the Yeats rights long after the rest of the world have been able to keep their monopoly? Not being of the far right, I don't accept the question, but the premise seems valid if you are of the right. Maybe I'm just showing my limited understanding of capitalism.

Minor quibble, Will:

But the whole point of copyleft is to improve capitalism, not end it ...

I don't think that's true. Every time I've heard Richard Stallman speak, or read one of his polemics, I've had the feeling that he was gritting his teeth and trying not to come out with the anarcho-communist-utopian version of Dr Strangelove's unfortunate arm-twitch.

(I'm deeply cynical about big business capitalism, but Stallman makes me suspect he's cynical about the concepts of private property and money. Which is another matter entirely.)

first, the creative commies meme was done in fun and on the spur of the moment, obviously. if we start stressing about being spontaneous and fun, even if it is in a public place like a blog, then we will all get bored and go home. copyright reform will not benefit. or worse, we will all be boring. no amount of copyright reform is worth that.

secondly, while I greatly appreciate Charlie Stross's comments on the necessity for some minimal level of professionalism in the PR approach of copyright reformists, I think he is ignoring or at least undervalueing the possibility that we will not succeed by out-suiting the suited on the suits-only stage. this is a movement that stands to gain a lot by informal, friend to friend, colleague to colleague growth. possibly, by the time we are debating it on stage, the debates will only be a formality, given that we will have the weight of public opinion and behaviour at our backs regardless. perhaps.

third, the fact that Rush Limbaugh points to this meme as evidence of our literal communism doesn't greatly worry me. I have no hope of converting his audience.

fourth (wow, that's a lot), if enough mainstream folk point in Rush's manner, then the cumulative effect might be to gradually shift those folks out of the mainstream in the opinion of the public, as attacking our social benefit proposition by pointing at our tshirts doesn't look so hot as a debating strategy to anyone with sense. I am assuming the public has sense, and I'm not sure that I'm wrong.

Hugh: I'm taking this line because I've been here before, in relation to the whole free software thing, back in the mid-nineties.

There is a huge amount of money at stake in the form of the big corporate copyright franchises. The people who make their living off of those franchises (and we are talking about hundreds of thousands of people) do not want to see the apple cart upset in any way, however trivial. There's as much potential for corporate dirty tricks -- astroturf campaigns, SLAPP lawsuits, lobbying -- as with the tobacco business, or polluting industries.

If you approach this issue (copyright reform) in any manner other than deadly serious and with extreme paranoia, you might as well paint a target on your chest and label it "AIM HERE".

This is about money. Billions and tens of billions of dollars' worth of money. And people down on the plantation get funny when they think you're planning on taking their money trees away from them.

> Greg, why abandon the commons for the bounty?

The commons is inherently a "property" metaphor: the tragedy of the commons overgrazing pastures, overfishing oceans, etc, etc. It doesn't work with intelletual works, because stories can't be "overgrazed". all the variations of Hamlet to date doesn't prevent someone from making one now.

Copyleft is not the same as a "commons". So, I'm not sure if you meant copyleft or commons when you asked me about "abandoning". I don't have a problem with copyleft. My "drafting the gift domain" document is GNU-FDL. I've contributed a number of perl modules to CPAN under the artistic license and GNU-GPL.

There are three acts in the bounty hunter play:

(1) before teh work is created, the public offers a bounty of certain rights for a certain duration for anyone willing to take a risk and promote the progress of teh arts.

(2) A writer creates a work, collecting the bounty, the rights for a period of 40 years, and uses their monopoly of rights to sell their work. If people buy it, great. If not, oh well, bad bart got away.

(3) the bounty is paid, the work enters the public domain, and anyone may profit from the service provided by the bounty hunter.

Most "property" metaphors only apply to step 2. Because they only work inside step 2, they have no capacity in determining how long step 2 should actually be.

The commons is a property metaphor, that applies to step 3. And the metaphor completely conflicts with the "reality-based" features of teh Public Domain. There is no "tragedy of the commons" on public domain works. There is no zero-sum-game involved with intellectual works that are public domain.

The "bounty hunter" frame is the only frame I know of that covers all three stages of the story, from before a work is created, to the work being created and treated as property, to the work entering the public domain.

Those who want to tell a story fairly need to tell the WHOLE story. A "property" metaphor can only tell part of the story.

What SHOULD be the proper frame or logic or game theory model or bounty hunter or whatever to respond to:

Gates Interview Part Four: Communists and DRM, at gizmodo.com

"This is the final segment of our interview with Microsoft Chairman Bill Gates, where we discuss why Creative Commons advocates aren't (or are?) communists, and why Microsoft feels their DRM offers the best of both worlds."

Gizmodo: When you talked to CNet... you sort of ticked off some of the blog world with some of the comments.... You made an analogy and called them 'communist.'"

Gates: "No, no, no. I didn't say those people were 'communists.' I did say that they're... The question is: what incentive systems should exist in the world?"

Peter Pan's publication date: 1902
Peter Pan's first movie adaptation: 1953
Peter Pan's latest movie adaptation: 2003 (or 2004)

I didn't realize this thread was still ongoing, or I'd have noted that Peter Pan is a particularly germaine case, as it has been granted perpetual UK copyright by legislative fiat. Whether this will make Peter Pan a less fruitful source of adaptions in the coming decades than similarly popular works that will actually pass into the public domain remains to be seen (although the fact that the perpetual copyright is only valid in the UK does rather muddle things, as Bollywood will freely be able to make the all-singing all-dancing The Story of Pan in 2014 without coughing up children's hospital royalties).

Fidelio said: "an unwilling live author, in control of their rights, is hard to get around."

Indeed. That was part of the point I was trying to make with my second example.

to Seth Ellis: yes, I meant to put "first Disney movie adaptation," but it slipped my mind somewhere in the process of writing it. Thanks for the clarification.

Now, more on bounty hunters:

(1) The public sets the price of the bounty just high enough that it attracts bounty hunters.

In the realm of slash (which I will assume you are all at least passingly familiar with), people DO write for no benefit. A really, really huge number of people. Writing, unlike bounty hunting, is not an inherently distasteful job that people need to be bribed into doing. Writers don't do it for the money. Bounty hunters do. Given that money-as-motivation is a big part of your argument, that makes this a bad mataphor.

(4) A bad-guy caught is a benefit the public enjoys FOREVER.

Erm. No, not really. Not forever. After all, everyone dies eventually, even assuming they don't retire. So you can't say "FOREVER" unless you want to say farmers provide a benefit FOREVER because the people who eat their food don't starve. And in that case, what is the difference between this and physical property again?

See why I didn't want to argue this in metaphor? Now we are having this useless argument about bounty hunters when we ought to be having a useful one about copyright. Bah.

I didn't really like Xeni until I read this blog. Now I champion her. Go pick on Wonkette. She's one who deserves it.

Maybe I'm missing the point, but it seems pretty straightforward to me. Someone said before that intellectual works are only considered property because we have laws that treat them as such. Somehow, this intellectual work is different than physical property, but the distinction is lost on me. I don't get how music or words are NOT physical property; they are the manipulation of a medium in the same way that furniture is the manipulation of wood. That we can copy and distribute a piece of music easier than we can copy and distribute furniture says to me that we should guard this intellectual property with a finer toothed comb than we would physical property. It seems that these "intellectual-property reformers" are really just asking artists to surrender ownership, which is fine. Those artists who see a greater benefit to society by giving away their property are welcome to do so and are in no way prohibited from doing so. Those of us who want to guard our property and sell it to others should not be held ransom by a bunch of people with computers. The same argument that says intellectual property should be freely traded and distributed absent of copyright seems alot like the argument that says all property should be shared absent of private property; they both sound alot like communism to me. Both claim a greater benefit, but neither contends with rational self interest.

One important difference, Tienanman, is that that if you build a chair out of wood and give it to me, you no longer have it. If you write a song and sing it to me, we both have it.

Copyright controls the right to make copies, not the possession of the actual object. It's a very different thing than ordinary property rights, and the laws involved are very different as well.

(And do you guard things with a comb?)

Tienanman,

property is a zero-sum-game.
if I have some THING, I cannot sell it to you,
without losing possession of it myself.
I cannot sell you a chair without me losing a
chair and you gaining one (hopefully while I
GAIN some money and you lose some)

intellectual works don't work that way.

I could sell you a song and still keep a copy
of that song for myself.

Copyright law prohibits me from doing that
unless I own the rights to that song.
Copyright law turns the song into a zero-sum-game
for everyone but the copyright holder.
I can purchase a CD at a store, and then if
I didn't like it, I could sell it used.
but theoretically, I should delete any copies
of that song I made from the CD. And I can't
sell those copies on the web.

Without intellectual PROPERTY law, all intellectual ideas and works are simply PUBLIC DOMAIN. As soon as you write something down, someone else could come along and copy it, distribute it, and give it all away for free on the net. As soon as you invented something new, someone could take that idea and start building copies of that invention without paying you anything.

But public domain gives no incentive for creators to take a risk at creating something new. It takes a LOT of work to write or invent something, and if it simply becomes public domain, there is zero market incentive to do so.

The US constitution that gives Congress the authority to create copyright and patent laws says this:

“The Congress shall have Power To…promote the Progress of Science and Useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”

Which reads like a Reward poster with a bounty. "promoting progress of science/arts" is the thing the public wants accomplished. "limited time" and "exclusive right" are the rewards offered to anyone willing to give it a try.

Specific bounties have been offered in the past for specific advances: the longitude navigation problem, nonstop flight across the atlantic, the spaceship-x contest.

Copyright and Patent laws are generic bounties offered for ANY new work. the reward is then played out in a capitalist market exchange. If the writing/invention is good, a lot of people will buy it, and the creator is rewarded.

But the end result is that EVERYONE eventually be able to use the works, writings, inventions freely. that they return to the PUBLIC DOMAIN.

The works could have been freely copied and distributed by anyone except for copyright and patent law. And copyright/patent law are only offered as a bounty to reward creators. Once the bounty is set high enough that people are willing to create and invent, then when the bounty expires, when copyright/patent laws no longer apply to a work, then work becomes public domain again.

The work is only "property" because the law makes peopel relate to it that way so that creators can be rewarded for their work. But the reward should only be high enough that people can make a living creating, and after that point, the works return to their natural public domain state.

> Given that money-as-motivation is a
> big part of your argument, that makes
> this a bad mataphor.

except that's a strawman of what I said.

The bounty should be set just high enough
that people could make a LIVING at it.

If people want to give their work away for
free, that's fine. But that's SEPARATE from
people who want to be able to make a living
at it.

And as much of a fan of Open Source as I am,
I in no way have EVER implied that it could
replace the power of capitalism in creating
new works and inventions.

So, once again, I'm saying to set the rights
and terms just high enough that people can
make a living at it. 40 years or so with
the exclusive right to copy, distribute, and
create derived works, with exclusions for
Fair Use ought to be enough to make a living
as a writer.

Tienanman, when you talk politics or religion, you've got to expect preconceptions. Devout capitalists approach questions one way; devout communists approach them another. So, acknowledging that humans aren't objective and the ones who claim to be are liars or fools, here goes;

"Property" is the idea that things can be owned: clothes, crops, land, etc. "Intellectual property" is the idea that ideas are also things that can be owned. The idea of property is at least as old as the ideas of kings and thieves, but it's usually been balanced by the idea of the commons, the idea that not everything should be owned. The idea of intellectual property is much newer. Perhaps the first copyright battle was the Battle of Cuil Dremne. But the obvious beginning of modern copyright is the Statute of Anne in 1710. It offered a 14 year copyright period, renewable once, before the right to copy an idea would return to the public domain.

Now, "rational self interest" is one of those phrases that I find fascinating. As someone who is concerned about his stories, I think they have a much better chance of surviving in the public domain than they do locked in the cellars of unending copyright. Melville's a fine example: his work was effectively forgotten by the end of his life, but when it came into the public domain, publishers began reprinting it because it was cheap and good, and now he's held to be a great writer. Whether that would happen under the current "death plus 70" system, I don't know, but I'm doubtful.

Maluko, I like what Xeni did, too. And I agree with Patrick. I think we need both approaches in the debate. But if we're negotiating a capitalist solution with capitalists, it's nice to point out that what we're after is much closer to what the US's Founders imagined than the unending corporatist monopoly system that's now in place

Heresiarch, I think there may be something to your earlier "what if the rights to reproduce the actual work lapsed after a reasonable time (when most any conceivable profit from publication has run its course), but the rights to derivative work remained with the author longer?" Whatever you think of the internet, it gives us the ability to have easily accessible databases. But the ability to do derivative work is at the heart of copyright, so it only makes sense to have a longer period for derivative work if the period on the original work is short, say 14 or 28 years.

See, now you've gone and encouraged me, Will.

So here's my plan:
Right to publish the actual work: 30 years
Right to license derivative work: Life or until primary publication rights end.

Why thirty years? Seems like a reasonable amount of time for nearly all profits to be extracted. This number seems like one that can be derived empirically by looking at actual sales numbers. I feel that 99% of all profits will be made in this time frame; if a different number comes up, then by all means, let's use that.

Why life? Like I said, the author has a unique relationship with their own work, one that no one else can have, or understand. If they want to sell all their movie rights like Michael Crichton, well, that's their privilege. If they want to sit on them like a miser, that's their privilege too.

Why until primary publication rights end? Otherwise you'll be dealing with derivative works where "the" is omitted in line 1, chapter 3. Just makes sense, I think.

Now, the Mouse: through this whole debate, it has always seemed to me that the Mickey Mouse that Disney wants to protect is totally different than "Steamboat Willy." They are protecting Steamboat because in order to protect the Mouse, they have to. So why not agree to treat them like different things? Create a section of copyright law that governs corporate symbols like Mickey and Marvin and whoever, that doesn't require keeping the copyright to all the work that they have appeared in. Would that work?

Something I keep meaning to point out, but keep forgetting: intellectual works aren't naturally "public domain." They are naturally infinitely duplicable. It's very different. The creator must choose to make them available to other people for it to become "public domain."

Heresiarch: If they want to sit on them like a miser, that's their privilege too.

Not the way I see it. The purpose of copyright is to encourage the creation of art. If somebody writes a hilarious musical version of 1984, and Orwell's heirs refuse to grant a license for its production (for whatever reason), the purpose of copyright has been thwarted.

What do you think about mechanical licenses? This is something used in the music industry. There are conditions (I'm not sure what they are) where a license is automatically granted upon the payment of some standard fee. I don't like the idea of having prices set by a non-market authority, but I do like a system where the creator can't squash derivative works. Perhaps a phased system could be used -- full licensing for the first 30 years, mechanical licensing from then till death.

Otherwise you'll be dealing with derivative works where "the" is omitted in line 1, chapter 3.

This assumes that judges and juries have no common sense. Real-world copyright cases often revolve around fuzzy judgment. Courts are perfectly capable of ruling that a novel with one word deleted is not a true derivative work in its own right, but just a defective copy.

As I see it, the purpose of copyright is to create market conditions in which artists are not punished for being artists. That's a little different than encouraging the creation of art. Art, in my experience, needs very little encouragement. I think that granting life-time control over the reinterpretation of one's work protects the original creator a lot more than it hurts anyone else. But that's me.

This assumes that judges and juries have no common sense.

Yes. I take it as a given that eventually any possible case will eventually show up in front of a very stupid judge. I would hope that even in that case, the right decision is clear.

> the purpose of copyright is to create market
> conditions in which artists are not punished
> for being artists. That's a little different
> than encouraging the creation of art.

The purpose of copyright has only one constituionally sanctioned purpose:

to promote the progress of science and useful arts

Any other purpose is unconstitutional. If congress gives disney rights and terms to keep their stock price propped up, it is unconstitutional. If the purpose of the law is to keep microsoft a software monopoly for operating systems, the law is unconstitutional.

congress may NOT use copyright and patent law to create corporate welfare or writer subsidies.
Unless the law is meant to "promote art and science" it is unconstitutional.

The operative word here is "competition". The way bounty hunters might compete for the same bounty. The point is not to create a MONOPOLY of one bounty hunter, the idea is to allow many bounty hunters to COMPETE. No one is PUNISHED (your word) by having to compete.

Re: this proposal:

Right to publish the actual work: 30 years
Right to license derivative work: Life or until primary publication rights end.

Do I correctly understand that you want to give authors the right to control other peoples' work (derivative works) for potentially decades longer than they can control their own? I'm not sure I see the principled justification for that...

Charles,

I think that means that if I write a novel,
I get the rights to the novel for 30 years,
and hold the movie rights, TV rights, comic book
rights for life (insert whatever duration here)

I could see how it would aleviate concerns that
the book-to-movie time might take longer than
30 years, 40 years, or whatever term.

After 30 years, anyone can copy/distribute my
novel, but I still get to control who makes it
into a movie and make some money off of it.

Maybe someone could plot a graph with author's
age on the x-axis and number of works published
by authors at that age on the y-axis. If most
authors are 32 years old or older when they publish
their work, they will, on average, die before
their book sees public domain, so I don't know
what the major concern is, other than it does
mean works published when an author is younger
might enter public domain while the author is
still alive.

What exactly do we do when someone
finally figures out telomorase extensions and
people can live several hundred years????

Is life-plus-70 still the "fair" duration for
copyright when poeple live 300 years?

most readers on this blog are speculative fiction
fans, so it isn't TOO unfair of a question.

Heresiarch:

"Create a section of copyright law that governs corporate symbols like Mickey and Marvin and whoever" -- this comes closer to Trademark than anything else. In California, the "likeness" of a dead celebrity such as Chaplin, Marilyn, 3 Stooges, has extra protection for heirs. SFWA's previous attorney published stuff about that.

Avram:

I agree with you re: "Otherwise you'll be dealing with derivative works where 'the' is omitted [sic] in line 1, chapter 3." But, from 15 years courtroom experience, many judges and juries do NOT have common sense.

Greg London:

I agree about "to promote the progress of science and useful arts." But the metalaw goes something like this in courts: (1) if the plain English meaning is obvious, end of story; (2) if ambiguous, and both parties have plausible argument, have to go through maze of laws, precedents, other states, whatever, evidence, testimony; (3) if still ambiguous, go to the Intent of the Legislators who drafted the law (or constitution) in the first place.

Greg London:

I wrote a book (not yet published) called "Success Curve" which is primarily about plotting books published versus writer's age. I have so much to say about that, that this is the place and time to say nothing more than: it's not so simple.

Jonathan:

It would be an interesting data point. But regardless of whatever complexity may be involved in all the data, one simple algorithm remains part of setting any bounty:

The public offers a price and if no one takes it they raise it. If someone takes it, it's high enough to get the job done.

If 40 years is long enough that people are willing to try their hand at writing commercially and some of them suceed, then it's long enough.

That's probably the most important thing about the "bounty hunter" frame that seems to be missing from most public discussions about how much is enough for copyright/patents.

It's a negotiation between public and author/inventor. The public sets a price, and each bounty hunter individually decides yes or no. If enough individuals step up to get the job done, it's high enough, regardless of what the age/works plot might look like.

Greg,

Your "bounty hunter" metaphor carries much too much baggage. The essential element that you focus on is suppliers and consumers arriving at a price. That's any market. Framing copyright limits as a price negotiation is a useful point, although there are other equally important views. But I'd lose the "bounty hunter" label.

Well, then, I need another situation where the public sets a price for a thing and waits and sees if an individual among them will take the risk to collect the reward.

Bounties and wanted-dead-or-alive rewards are the only simple, real-world example I can think of for that kind of situation.

It isn't a simple person-to-person interactive negotiation that's happening. It isn't a person selling a blanket haggling with a buyer who wants to purchase it. A group sets a price, and waits to see if any individual is interested in that amount.

That's how copyright should work. The Public sets the rights and terms and sees if anyone is willing to collect on it.

The group makes a sacrifice in surrendering its rights to the individual, so they want to keep the rights and terms as low as possible.

The individual who is thinking of collecting will want to make as much money as possible, so will want to push the rights and terms as high as possible.

Competition among individuals, however, should counter-balance upward pressure and settle at a point just high enough for people to make a living at it.

I can't think of any other transaction that fits that description that isn't as complicated as intelletual property. The point of the metaphor is to make it simple for people to grasp it, but accurate enough that the metaphor covers the important aspects of the transaction.

Whatever baggage, the bounty hunter metaphor fits the transaction very well.

I am open to suggestions however.

Well, then, I need another situation where the public sets a price for a thing and waits and sees if an individual among them will take the risk to collect the reward.

Oh, that's easy: It's called a reverse auction. Like Priceline.com. You can probably even use William Shatner as the New Copyright Movement's Official Spokesperson if you want.

Greg said: It isn't a simple person-to-person interactive negotiation that's happening. It isn't a person selling a blanket haggling with a buyer who wants to purchase it. A group sets a price, and waits to see if any individual is interested in that amount.

Yes, it's not a simple person to person negotiation. No, it isn't a group setting a price and seeing who is interested. It is the opposite: an individual creates something and sees how much the public at large is willing to pay to get it. Currently, the accepted price includes agreeing not to reproduce it without permission, as well as a per-copy fee. This is something that the public at large agrees to, so that individuals within the public are able to possess (usually physical) copies of the work.

This is why I brought up the distinction between inherently infinitely reproducable work and inherently public domain work a while back--creators, not the public, have ultimate control. If every artist in the world banded together and refused to release any work unless they were granted copyrights in perpetuity, no one could stop them. Hell, if one artist refused to release anything unless she was granted copyright in perpetuity, no one could stop her. Obviously, every would just ignore her, but the public couldn't simply confiscate her novel.

In order for the system to work, both the creator and the public must give something up. Creators must give up the absolute control of their own work that sole possession allows, and the public must give up the right to freely distribute the work. It is the extent to which each must relinquish these rights that is subject to debate.

Essentially what copyright does, IMHO, is grant a privilege of control over a work--control that an author can naturally exert just by choosing not to share--in return for the privilege of being given access to that work. It allows a shading of control in an environment that is naturally all or nothing, allowing both parties to benefit. Without copyright, neither parties' interests are served.

The purpose of copyright is to arrive at a compromise of control that, as members of the human race, creator and/or consumer, everyone can agree on. One that does not overly reward or punish the public or the creator. Or so I'd like to think.

If that makes anyone's head hurt, I apologize.

> an individual creates something and sees how much
> the public at large is willing to pay to get it.

The problem with the bounty hunter metaphor is that with copyright/patents, there are actually two transactions going on, one after the other.

First, the public sets the kind of rights the creator gets and for how long. The right to copy, distribute, and create derivative works, for a duration of 40 years.

Second, a writer/inventor creates something and attempts to sell it on an open market. An author attempts to sell his book. An inventor tries to sell his widget.

The bounty hunter metaphor focuses on the first step. Without copyright or patent law, everything is Public Domain. Anyone can copy anyone else's work, and there is no market incentive for a creator to create anything.

Anyone could go and track down Bad Bart, but without the reward for his capture, there is a lot of risk and no reward but self-satisfaction of a job well done. And that don't pay the rent.

In both cases, the public realizes that the way things are, no one will write for a living, no one will catch the Bad Barts of the world for a living. There is no monetary reward.

So, they offer a reward for Bad Bart's capture. They agree to collectively put their money together to come up with a reward big enough that someone will go catch Bad Bart.

For writers and inventors, the public agrees to come up wiht a "reward" for new works. The public agrees to collectively surrender what would naturally be their Public Domain rights to an intellectual work, and give it to the author/inventor for a period of time. The Public sacrifices their collective rights to new creators and agrees to treat their works AS IF it were real property owned by the person who created it.

That is the bounty. That is the reward collectively offered to anyone willing to take a risk and work as a writer or inventor.

For bounty hunters, the reward is given on fairly specific conditions. The first person who successfully brings in Bad Bart (dead or alive as the case may be), gets the reward. Success is rewarded.

For authors and inventors, success is not something so easily defined. So, rather than list the specific works the public wants invented, the public allows the author/inventor to ATTEMPT TO SELL their creations on an open market, and have the buying public decide if they want to purchase the author's creation or not, and thereby define the creator's level of success.

In the first phase, the public, through Congress, collectively surrenders certain rights to creative works that would otherwise be Public Domain. This bounty, this reward, is offered as an incentive to get people to write and invent such that it promotes progress.

THAT IS THE BOUNTY.

In the second phase, the individual creators can then create something and see how much the public is willing to pay for it in terms of money. Will people buy a book for $30 a copy? This is your inverted one-creator-many-buyers transaction, that was created as a result of the PUBLIC AS A WHOLE surrendering the right to copy, distribute, or create derivatives of that work for 40 years. This is what allows the writer to treat the book he wrote as his and set whatever price he wants for it. This is what allows the inventor to treat his invention as his and set whatever price he wants for it.

This second part of the transaction is how you define SUCCESS of the bounty hunter.

If the creator sells a lot of copies, then he brought Bad Bart in, and variously promoted progress in one way or another.

But the bounty, the rights and terms, are surrendered by the public, as a reward to any individual willing to risk creating something.

This bounty allows creators to treat their creations as property and attempt to sell them on the market. And in this market, creators can define their success or failure.

Ray

> It's called a reverse auction. Like Priceline.com.

Individuals offer their individual price and see if anyone will take it. As a whole, buyers as a group "compete" to push prices down.

It isn't quite the same as a group coming together and everyone chipping in five bucks of their own hard earned money to create a reward big enough that someone would be interested in taking the risk to collect.

Though, I admit I've never used priceline, so maybe it works a bit differently than I'm guessing.

The only other thing I can think of that is even remotely close to what I'm looking for is a Barn-Raising. The public as a whole comes together and surrenders their hard work, time and effort to one individual. Except that metaphor doesn't fit for how the individual is picked to recieve a free barn.

IP rights are offered as a reward to successful authors. Barn raisings are usually for whoever needs a new barn, the old one burned down, etc.

> If every artist in the world banded together
> and refused to release any work unless they
> were granted copyrights in perpetuity, no one
> could stop them.

> if one artist refused to release anything
> unless she was granted copyright in perpetuity,
> no one could stop her. Obviously, every would
> just ignore her, but the public couldn't simply
> confiscate her novel.

I just realized that we're not discussing the problems with my "bounty hunter" frame. You have a completely different worldview and it completely disagrees with my frame.

You view something created by an artist to naturally belong to them forever. You view copyright expiration as something that artists give to the public out of their own generosity. They bequeath their works to the public upon their death the way slaveholders might free their slaves upon their death. It's nice if they do, but (like Thomas Jefferson), they don't have to.

Since a work is forever the property of the artist, you view forcing an artist to place their work into the Public Domain before they are ready as "confiscating" it.

I'm not sure how you explain patents inside of your worldview. You must treat them as completely separate, otherwise there is no way to explain why copyright should last forever and patents only last 20 years.

===

My view is that works exist naturally as public domain. If Shakespeare wrote a play, it was immediately public and anyone could perform it. The Public realized that this does not provide much incentive for certain types of creators. My view is that the Public agreed to surrender its natural Public Domain rights by agreeing to give some of those rights exclusively to the artist/inventor for a while.

My view is that the Public agrees not to copy music because musicians couldn't make a living making music. My view is that the Public surrenders enough rights for a long enough time that a musician can make a living. After that period of time, the artificial protection given by copyright law expires and the works return to their natural state of Public Domain.

====

You view works to be owned by artists forever and only donated to the Public Domain out of their generosity (or the fact that they've died and don't care anymore).

I view works as naturally Public Domain, but that the Public agrees to treat it as property for awhile to encourage writers to write and inventors to invent.

We're not discussing ways of improving my "bounty hunter" frame. You are rejecting it in totality.

====

Lakoff's explanation of worldviews and frames would say we'll never agree. Everything I'm saying is bouncing off your worldview. So I think we can only agree that we disagree and leave it at that.

Greg, I can't speak for Alex, but in my mind, the main problem with your "bounty hunter frame" is that your metaphors would lead 99% of typical listerners scratching their heads and wondering what the fuck you're talking about.

Here're some frames for you: Big Business wants to Expand Government and Take Away Your Rights. The RIAA wants to Dictate What Kind Of CD Player (DVD Player, Computer, Whatever) You Can Buy, because it wants to Make It Harder for you to Discover New Musicians on Independent Labels. The Big Media Companies are Dinosaurs, trying to Stomp Out the New Distribution Models, which are like Nimble Mammals.

See? No bounty hunters. Just a bunch of short phrases you can insert into every argument or essay on tne topic. And please read Newt Gingrich's 1996 GOPAC memo "Language: A Key Mechanism of Control". Also, weep for our civilization.

> Here're some frames for you: Big Business wants
> to Expand Government and Take Away Your Rights.

Avram,

I don't mind giving up some of my rights. I don't mind paying someone for a copy of their work when I could photocopy it for free. I don't mind giving up some rights so that writers can make a living. Giving up rights isn't the problem.

The problem is figuring out where is the balance point. There is no model that is of any use in determining what is a fair amount of rights and a fair duration for the public to surrender. According to Heresiarch, artists bequeath the rights to their works out of their own generosity. If that's the model you use, then your "big business" frame may be persuasive to other readers, but it doesn't help in actually designing a fair system. In Heresiarch's frame, if teh artist doesn't want to give up their rights, you can't just "confiscate" their work.

copyright shouldn't simply be majority vote wins. THat isn't a "reality based" model that actually allows you to find a q-point, a point where the system is inherently stable.

I'm of a mind that human rights and what we consider "good" also happen to fit into a system's model of what are stable designs.

Copyright to me is no different. "What is fair" or "what people vote" is not enough to actually design stability. A cake-cutting algorithm is an algorithm that you can use to design exchanges and reach a stable and fair result. There is no such thing with copyright.

The "bounty" model is my attempt at finding a model that actually allows you to design what rights to give to an author and for how long.

It's an algorithm you can use to actually find the stability point of rights that are just enough for people ot make a living and promote science and the arts.

any "emotional" baggage around the metaphor is simply because it is a new frame that has never been applied before. Once it has been established, it won't have the same baggage. It won't make poeple go "huh" at it's mere mention.

I'm working on a document that describes the model and how it relates to IP. I'm open to alternative models, but as yet, no one has suggested anything to replace it, only reasons why it won't work (which I hope to use to make it so that it DOES work).

Greg London:

Things were VERY different in Elizabethan England. People could pirate plays, but only based on corrupt versions as imperfectly remembered by actors. The printed plays, as with other printed books, had something akin to copyright -- but held by the printer, not the author.

"It's an algorithm you can use to actually find the stability point of rights..." There may in some such models be a "stability point" -- in a Game Theory model, that is what a Nash Equilibrium is (which is very incorrectly represented in the otherwise fine film of a fine book "A Beautiful Mind"). But there can be, in other models, no Nash Equilibrium, or many, or even an infinite number. Also, auctions, and reverse auctions, are algorithms that, in some circumstances, converge on an equilibrium. Again, I have recent publications on John Forbes Nash, Jr., and think that he was one of the greatest geniuses of the 20th century, but this is not the forum for me to explain, for instance:

"The Nash Equilibrium: Polytope Decision Spaces and Non-linear and Quantum Computational Architectures"
[Proceedings of the Fifth International Conference on Complexity Science,
17-21 May 2004]
Author #1 = Professor Philip V. Fellman, Southern New Hampshire University
Author #2 = Professor Jonathan Vos Post, Woodbury University

or

"The Nash Equilibrium Revisited:
Chaos and Complexity Hidden in Simplicity"
[Proceedings of the Fifth International Conference on Complexity Science,
17-21 May 2004]
Author #1 = Professor Philip V. Fellman, Southern New Hampshire University
Author #2 = Professor Jonathan Vos Post, Woodbury University

or

"Adaptation and Coevolution on an Emergent Global Competitive Landscape"
[Proceedings of the Fifth International Conference on Complexity Science,
17-21 May 2004]
Author #1 = Professor Philip V. Fellman, Southern New Hampshire University
Author #2 = Professor Jonathan Vos Post, Woodbury University
Author #3 = Roxana Wright, Southern New Hampshire University

even though these papers and others do bear on the problem of copyrights, corporations, and individuals.

From "Ex-Inmate 46664 Fights for His Now Profitable Name", by Michael Wines, The New York Times, 18 Jan 2005, p.A4:

"South Africa's intellectual property laws are not unlike those in Europe and the United States, forbidding the unauthorized use of protected properties when this 'would be likely to take unfair advantage of, or be detrimental to,' their 'distinctive character or repute.' Violators can be fined or sentenced to up to a year in prison."

Greg said: "I just realized that we're not discussing the problems with my "bounty hunter" frame." "We're not discussing ways of improving my "bounty hunter" frame. You are rejecting it in totality."

Yes. Do you know why? It is a bad metaphor. It is an even worse frame. So why don't you do yourself a favor and ditch the bounty hunter metaphor? It's doing your arguments infinitely more harm than good. See, a frame isn't really helping you much if you have to explain it over and over, or if it has negative connotations. If you think that "any "emotional" baggage around the metaphor is simply because it is a new frame that has never been applied before," and that all that will magically go away, then you are sadly mistaken. Lakoffian frames are meant to make your argument instantly and naturally sympathetic; your frame fails utterly at this.

To contrast your frame with Avram's: his dinosaurs versus mammals is instantly sympathetic and requires no explanation. It highlights the relevant issues, i.e. corporations' time is past, they use their unfair size advantage to fight against the next wave in evolution. Also, it implies the inevitability of their defeat. Not bad for half a paragraph.

"You view something created by an artist to naturally belong to them forever. You view copyright expiration as something that artists give to the public out of their own generosity. They bequeath their works to the public upon their death the way slaveholders might free their slaves upon their death. It's nice if they do, but (like Thomas Jefferson), they don't have to."

*sigh* Well, it's a step in the right direction, anyway. No, my position has nothing to do with generosity of spirit. My position is, as you might have noticed if you had read the next three paragraphs, that both the public and the creator have certain privileges, privileges with certain flaws, which make any sort of transaction impossible. They are, in case I'm not being obvious enough:

-Creators can choose not to share their work with the public, in other words, refuse to allow it into the public domain (See? NOT INHERENTLY PUBLIC DOMAIN) Flaw- it's all or nothing, once released, nothing can never be retracted
-The public can reproduce intellectual work without any cost or detriment Flaw- provides no benefit to creators, thus discouraging creators from creating

Obviously, artists want to share their work with the public, and the public wants access to it. In order to bring about a mutually beneficial situation, both parties have to forfeit their privileges to a differing degree. Artists release their work on the good faith that it and they will be well-treated, and the public agrees to forfeit its ability to freely reproduce the work for a time.

See? No generosity, no slave-owners (nice framing, btw). Just two parties engaging in an commercial interaction for their mutual benefit.

This situation benefits the public much more than the creators. But that is only fair, because creators are a single person and will die, where the public is many people and will last for eternity. The public also has a huge negotiating advantage, because creators really, really, want to share their work, and the public, sight unseen, doesn't really care.

Jonathan,

Your "character or repute" quote sounds like "moral rights" and I'm not a big fan of moral rights. "Fair Use" should allow criticism and parody and if such criticism/parody makes the original author look like a fool because the person parodying them thinks him one, then dissent ought to be allowed.

but moral rights are yet another argument and I think I'm done arguing for now.

Heresiarch,

I just wanted to point out that your example of creators holding something back from the public so as it shield it from eventual loss of control is precisely what a "trade secret" is. Trade secrets are a less established area of IP law, and are handled differently by different states, but it is a recognized legal construct. Trade secrets can be held in perpetuity.

Heresiarch,

Having just finished reading Lakoff's book, I can tell you with certainty that he says that progressives are losing elections because progressive frames DO NOT EXIST. He suggests think tanks and similar groups are needed to create frames and put them out into the world so that a progressive politician can say a progressive slogan and not have to go into a big long explanation because everyone in the audience has already heard the explanations from other sources. He says that every time you hear a progressive politician go into a lengthy explanation that it's because they're trying to get at a frame that doesn't exist.

So, no, I won't ditch the bounty hunter frame. I think it is valid and needs to be established in the world so that people can just say "bounty hunter" and instantly get all the underlying explanations.

Lakoff also says that frames will make your argument instantly and naturally sympathetic TO MOST people. Not everyone. He says that the idea is to get the moderates in the middle to swing over to progressive ideas. He doesn't say an extreme right-winger will suddenly slap his forehead and say "What a fool I've been".

You are in the extreme opposite end of the spectrum from my worldview around copyright and patents. I do not expect you to EVER agree with me or concede even a morsel.

> Creators can choose not to share their work
> with the public, in other words, refuse to
> allow it into the public domain
> (See? NOT INHERENTLY PUBLIC DOMAIN)

Wow. I don't even know where to begin with this.

While I don't completely agree with Dr. Samual Johnson that nobody but a blockhead ever wrote except for money, I would say that someone who spends his whole life writing, but never lets anyone read any of it, is a complete blockhead. I don't think we should design systems or write laws where blockheads are the main actors in the system.

Weren't we talking about "making a living" as a writer? How does anyone make a living as a writer if they don't get published?

The closest thing your hypothetical situation could be talking about that doesn't require someone who either is insane or has absolutely no self-esteem, would be a Trade Secret. And Trade Secrets give the creator even fewer rights than Copyright does.

If someone develops an invention but doesn't want to patent it, they could treat it as a Trade Secret. But trade secret law allows for someone else to Reverse Engineer the invention if they can legitimately procure an instance of the invention. Which means Trade Secrets are usually used for internal information like customer lists, databases of internal information, business plans/roadmaps, etc.

So, if you have something you created and you don't share it wiht anyone, then anyone else could independently create a similar work and you can't prevent them.

If you do share it with others, but try to keep it a Trade Secret, other people can reverse engineer how the device works, and if they figure it out, you cannot prevent them from selling copies of your idea.

Only through Copyright or Patent protection can you prevent copies of your idea from being manufactured and sold by your competitor.

So, you are correct in your hypothetical hermit situation, that an idea kept to yourself and shared with no one else is not "inherently public domain".

But the closest legal concept to your hermit is Trade Secrets. And Trade Secret law is even LESS protective than copyright or patent law. Reverse engineering is allowed, which means I could take your trade secret, take it apart, figure out how it works and make my own version of your invention.

Trade Secret law reflects the inherent Public-Domain-like properties of intellectual works when that idea is shared with even one other person.

Your hermit frame doesn't fit with real world laws.

Unles you want to talk about the non-real-world situation where someone spends their whole life writing and inventing and shows their works to NO ONE.

So, if you want to talk about designing a system around writers making a living, let me know. Otherwise, your hermit who never comes down from his lab in the mountains reads like a mad-scientist tale.

Greg,

I think just about everyone who's discussed your frame with you so far has expressed a lizard-brain level reaction of distaste to being compared with a bounty hunter. The reasons being: Greed and cold-bloodedness. Bounty Hunters were seen as murderers as much as saviours, and were not people you wanted in your social circle. The guyn who brought in Bad Bart, if not a member of the acutal police force or sheriff's office, was a vigilante whose motives you could not trust.

However accurately the frame fits the logical facts of the copyright debate or the interaction with the public, in the visceral, intuitive level, people are seeing themselves being called greedy and cold-blooded for going out and writing books and music. And they see themselves being painted as outsiders, not belonging to a social life.

Logically, intellectually, the frame seems reasonable.

But a frame is supposed to get past the intellectual and into the intuitive. A good frame paints the people you're trying to convince in a positive light - to do otherwise is to talk about redneck backwater red-staters while persuading conservative voters.

This one is a failure.

Lenora,

Yeah, I think current popular culture probably equates "Bounty Hunter" with "Bobba Fett", and we all know he was a bad guy, right? Oy.

I was sort of hoping someone might come up with a twist that describes the transaction as well as bounty hunter, but without the "Bobba Connection". So far reverse auction was the only other suggestion, and it doesn't quite fit the way the transaction works.

I'm working on a narrative for this frame, which clearly casts the bounty hunters as good guys, so maybe when that's got a coat of polish or two on it, it won't ruffle as many feathers.

I'm pretty sure that I haven't convinced anyone here, but I think you get your best feedback from your harshest critics. Heresiarch actually made me realize that I didn't have a conscious definition of "Public Domain" until today, it was an unconscious gut-feeling sort of thing. So, it hasn't been for nought.

Public Domain means that someone CAN use a resource if they come across it. You can graze your cattle in the public domain pasture. But only if you happen to have cattle and you happen to live somewhere nearby. An ungrazed commons pasture is still Public Domain.

Public Domain and intellectual works means you CAN use a work/idea/writing/invention if you come across it. You can graze upon Shakespeare and put his stories and characters in your writings. But only if you actually write and you've actually read Shakespeare. An unread manuscript from 1800 AD is still Public Domain.

When a book enters public domain, that doesn't mean that everyone suddenly gets a copy of that work. It means if an individual comes across a public domain work that they like, they can use it.

Heresiarch's Hermit who writes but never shares was an argument against my assertion that writings are "inherently public domain". But Public Domain has nothing to do with distribution. It has to do with whether or not you can use a resource that you come across, or whether it is PRIVATE PROPERTY and you have to get a license or someone's permission.

The great works of Heresiarch's Hermit are inherently Public Domain, and without copyright law, would lie like an undiscovered pasture in his attic. That no one else has a copy doesn't affect the inherent Public Domain-edness of the writings. It is the fact that they are resources that can be used by anyone.

I didn't piece that little nugget together until today. So I don't mind a complete lack of agreement.

It's actually like getting feedback on something I wrote from someone who is extremely thorough and critical. Some stuff about the story are things I simply will never change. But the rest is nothing but pure gold in making my stories better.

And personally, I like bounty hunters.

;)

Greg,

Be careful in equating "public domain" and "commons." You're right in your definition of public domain, in that anyone is free to consume in any way. Commons, on the other hand, can sometimes have very restrictive limits on usage. People often refer to Linux, for example, as "public domain" software, but of course the GPL uses copyright law to define some pretty strict limits on your behavior as a consumer of the source code to Linux. It's not in the public domain. But it is, in an important sense, a commons.

Alex,

Thanks. I'm fairly familiar with the various open source licenses. I separate them into two basic categories: public domain and copyleft. PD licenses would be licenses like BSD which gives up all rights to the work. Copyleft would be something like GNU-GPL, which is intended to let you do anything you want with a work as long as you share it with everyone else.

Copyleft, in my mind, is not a commons, because a commons lets you feed on it and not share that benefit with anyone else. You could feed your cattle on a commons pasture and not share any benefit of that with anyone else. A commons is more like Public Domain or BSD which allows you to take from the commons for your own private benefit.

Copyleft lets you feed your cows off the commons, but then requires you to share the milk your cows make. It's a weird metaphor because copyleft doesn't really fit a commons. It's a commons with grazing restrictions or something, which isn't a pure commons anymore.

Anyway, that's yet another framing discussion. But suffice to say that I'm aware enough of the differences to not shoot myself in the foot about it.

It'd thrill me to death if you'd stop making my arguments into metaphors and then critiquing the flaws of the metaphor. "That's like some crazy mad-scientist-type hermit who never shares his work!" is not a persuasive argument. Neither is "That's like Trade Secrets, and Trade Secret law lets people reverse engineer!" The trade secret in art isn't the idea, it's the brain that produces the idea. And I'd like to see someone reverse engineer that.

You're still bogging down on the problem that in copyright it's an idea that is the product. Trade secrets, patents, none of them are analogous, because in all of them the idea is merely a step in the production of something physical. In art, the information, the raw data, is the only product there is.

Greg said: While I don't completely agree with Dr. Samual Johnson that nobody but a blockhead ever wrote except for money, I would say that someone who spends his whole life writing, but never lets anyone read any of it, is a complete blockhead. I don't think we should design systems or write laws where blockheads are the main actors in the system.

You like metaphors, so here's one for you: If you are trying to figure out how to use a catapult to fling rocks really far away, wouldn't it be useful to know how rocks behave outside of the catapult? Knowing how rocks behave when nothing else is going on would be crucial to understanding how rocks behave when air-borne, wouldn't it?

To tie the metaphor back, considering what happens to ideas in absence of a publishing industry, or high-speed internet access, or even language, is crucial to understanding what happens with those things. And what you discover is, when you take out all the things that make sharing information easy, nothing happens. No one else ever knows of it. Nothing magically becomes public domain, just for the virtue of existing. To become public domain, something must be shared.

If I were to tell a bed-time story to my child, and neither of us ever repeated it, it is not public domain. If I were to whistle a tune to myself while alone, it would not be public domain. If I were to write a poem on a piece of paper and then erase it, it would not be public domain.

To put it as succinctly as possible, if no one ever comes across a resource, it doesn't matter whether or not they have permission to use it. Since creators are neccessarily at some point the sole possessors of their work, they can choose not to share.

Your definition of public domain is useful and important, and I'm glad you came up with it, but it is a legalistic definition of public domain. The definition I've been talking about is a, what, naturalistic definition? I'm not sure if that is the right word, but it is based on the way information works outside of any system constructed by humans. The way that this natural public domain works is the reason that legal definitions are neccessary. The natural definition is too harsh, too all-or-nothing.

Heresiarch and Greg London:

"If I were to tell a bed-time story to my child, and neither of us ever repeated it, it is not public domain. If I were to whistle a tune to myself while alone, it would not be public domain. If I were to write a poem on a piece of paper and then erase it, it would not be public domain."

This has been discussed in a different context: how much information do people generate? Larger than the Library of Congress and larger than the Web is the data of all the conversations that people have. The audio carried by the phone companies, and the larger amount of audio never captured by microphones or casette recorders. Larger than that is the amount of video, and larger still the potential video if everyone were on camera all the time.

David Brin speculated on the politics of that in "The Transparent Society."

We are not in that world, now. I think it is worth considering how the legal mechanisms and conceptual models of intellectual property apply. Hence you are not entirely talking past one another.

How would things worked if everyone in the "developed world" had a microphone that, at least when voluntarily turned on, dumped digitized audo files onto an audioblog? Or when everyone has microcameras on their lapels dumbing video onto videoblogs?

I've discussed that with legendary founders of the online world [no names dropped here]. It's too big for contemporary infrastructure. But cool to think about, and likely to happen in some form, some day. Isn't Science Fiction part of our frame for talking about this? The phrase "tapeworm" for someone who tapes themselves 24/7. "Slow Glass" accomplished by other means. Of course, it's up to Patrick if this thread should be opened up that wide.

> Your definition of public domain is useful and
> important, and I'm glad you came up with it,
> but it is a legalistic definition of public
> domain. The definition I've been talking about
> is a, what, naturalistic definition?

Public Domain can apply to physical property like roads, pastures, common areas, and the like. That is the "naturalistic" definition, or the "reality-based" definition. You've got a resource that anyone can use. You could look at America's treatment of land to the west as "public domain", up for grabs to whoever settled it.

without real-estate property laws to demarcate property lines and ownership, without copyright laws to say who owns that story, both are public domain resources open to anyone to use. Just because no one settled a piece of land does not mean it isn't Public Domain. It is Public Domain because there are no laws or restrictions on it and anyone can use it.

Just because no one but your hermit ever read his story, doesn't mean the work is somehow different in nature. Without copyright laws, the work is inherently public domain, and anyone who happens across it could use it for whatever purpose they wish.

Your argument is just an odd version of "If a tree falls in the forest and no one is there to hear it, does it make a sound?"

Public Domain is irrelevant to whether or not anyone knows the thing exists.

The whole point of writing is communication with another person. And you cannot communicate a story or an idea for an invention without the lisener getting a copy of that idea in their brain. Your hermit writer is irrelevant to any real purpose of writing. Come to think of it, if your hermit writer wrote "The Hunt for Red October" and never showed it to anyone, and then Clancy came along and wrote his version of "The Hunt for Red October", your hermit would have NO LEGAL RECOURSE, either with copyright or even trade secret law. If Tom Clancy never saw your Hermit's manuscript, copyright law specifically ALLOWS Clancy to write his own version of the story, even if it turns out to be a verbatim, word-for-word copy of the manuscript.

Why? Because writings are inherently public domain. and if Clancy discovers a story on his own, he gets rewarded for it. Your Hermit example doesn't fit the natural public-domainedness of writings, and neither does he fit the law's attitude towards hermits who keep stories to themselves.

Greg London et al.,

I admit that it is possible to write NOT for money and NOT for readers.

Example: Isaac Newton and Charles Darwin wrote two of the greatest books in the history of Science, and had to have their arms twisted to publish. Reasons are complicated, historical, and not very applicable today.

Example: writing as therapy. Keeping a journal, writing confessional poems, even writing a novel just to find out what you're actually thinking and feeling, and maybe understanding yourself better.

Example: writing a venomous letter, and then deciding not to send it. Famous examples abound, such as one by Abraham Lincoln, published posthumously. These are sometimes called "nastygrams."

Example: anything written for posterity and published posthumously. These include masterpieces such as the book by Copernicus, who probably didn't want to be burnt at the stake.

Jonathan,

true, but given that intellectual works are public domain without copyright/patent laws, and given that the ONLY way that congress may pass copyright/patent laws is solely to "promote the progress of arts and science", and given that "progress" is public, then the only writings constitutionally protected by copyright laws are those that are at some point shared with the public. Works kept locked away in a drawer where no one ever sees them are Trade Secrets and are not protected by copyright or patent law. There are a number of court decisions that support this view.

The progress of science and arts are not promoted if the work is seen only by its creator and then locked away, lost or destroyed. so copyright and patent law cannot protect such cases.

As further evidence, if a patent is approved, the patent application becomes public domain so that everyone may learn how the new invention works. Patent law protects the inventor only if he describes his invention to the public and promotes teh progress of science by doing so.

Progress is a public measure.

privately held works are trade secrets and are NOT protected by copyright or patent law, and have fewer rights than copyright or patent law.

The "hermit writer" that you insist on bringing up over and over was a throw-away example used to illustrate one of the many points that made up my argument. Stop treating it like it was the main thrust of my argument. It is as relevant to this discussion as the rock and catapult are.

"Public Domain can apply to physical property like roads, pastures, common areas, and the like. That is the "naturalistic" definition, or the "reality-based" definition. You've got a resource that anyone can use. You could look at America's treatment of land to the west as "public domain", up for grabs to whoever settled it."

If someone can in the future own something that is currently public domain, then you are using a strange definition of public domain, IMO.

Physical public domain and intellectual public domain are entirely different things. Physical property is constantly subject to certain restraints that do not exist for intellectual property. Grass can only be eaten once. Every car that drives down a highway damages it imperceptably. In stark contrast, intellectual property's value, if anything, increases as more people use it. Shakespeare wouldn't be such a popular source if everyone didn't already know his work.

See what I mean about being stuck on the difference between ideas and physical objects? They behave very differently--analogies between the two are more harm than help.

"Your argument is just an odd version of "If a tree falls in the forest and no one is there to hear it, does it make a sound?""

I would say my argument is "If a tree falls in the forest, and only one guy hears it, and he didn't record it, does anyone else know what it sounded like?" The answer being no. Where I think we disagree: "Is that sound public domain?" I would say no--no one else will ever be able to hear it, and the guy cannot share it, therefore it is in no conceivable way even potentially public knowledge.

About Tom Clancy and the hermit: You are right, and, being right, are still irrelevant to the point at hand. If people could independently come up with identical ideas, then being able to come up with those ideas wouldn't be a saleable ability. If I could come up with my own murder mysteries, I'd hardly need Aaron Elkins to do it for me, would I?

In absence of legal restrictions, the natural state of ideas is that anyone who possesses an idea can distribute it (or use it). So to tell one is to tell all--unless you can be sure that the person you tell won't tell anyone else. This is where the conversation begins to shade interestingly towards cryptology and information theory in general, as JVP has pointed out. However, I think that our hands are full at the moment. So let's just continue to pretend it's a nice clean cut off between creator and everyone else.

Public Domain is irrelevant to whether or not anyone knows the thing exists.

Now this is intriguing. You are positing a kind of meta-Public Domain, which contains all possible permutations of all possible ideas. So you would argue that all creators are merely dipping into this meta domain to give ideas actual existence. Then, after the creators have been rewarded for this service with the control of those ideas for a certain time, then those ideas reenter the public domain, this time as actualized ideas. As an Empiricist I scoff politely, but if you wanted to base an argument on this instead of bounty hunters, I'd be interested to hear it.

We have different definitions of "Public Domain". My definition is a thing with no legal restrictions of ownership upon it, regardless of whether the thing is known or not. I could not for the life of me figure out what your definition was until just now, looking it up in several online dictionaries, I found a dictionary where the third and last definition was "being public knowledge as opposed to being secret". Of the thirteen different dictionaries that came up, this definition is in only one of them, and it is the last definition for that one.

It is an odd definition, and as far as I can tell, it's possible to have stuff be public domain and not know what's in it. natural resources hidden under the land. etc. so it seems to be incomplete. But oh well. we'll just have to disagree on that I suppose.

Hm, it cannot mean every single person in the public knows. I'm not sure if one other person completely independent from the author knew the work if that would qualify as putting the work in the "public domain" according to this definition... Will have to ponder a bit more.

> So you would argue that all creators are
> merely dipping into this meta domain to give
> ideas actual existence. Then, after the
> creators have been rewarded for this service
> with the control of those ideas for a certain
> time, then those ideas reenter the public
> domain, this time as actualized ideas.

well, I'm still trying to wrap my head around the various implications of a third and completely different definition of Public Domain, so I'm not sure what you mean by "meta-public-domain".

But the idea is to reward authors and inventors for the work they put into bringing a work into existence. Before the work exists, it was Public Domain but unknown. Anyone can bring it into existence, there are no legal restrictions at that point.

Authors and inventors expend time and energy and one of them is the first to create the thing in reality and make it known. without copyright law, the thing then immediately enters the public domain (or perhaps as soon as a second person knows about it, but whatever), and the creator has no way of leveraging their work to make money on par with the time and energy they put into creating the thing.

Copyright law grants certain exclusive rights for a period fo time on par with the amount of work put into bringing the thing into existence. Once that period has expired, the creator has had his chance to get paid, and the work returns to the public domain.

As much as everyone seems to hate the bounty hunter metaphor, it fits the situation exactly. It starts out with an unknown, a bad guy on the loose somewhere, but know one knows for sure or they'd just send in the sheriff to bring him in. There is risk involved in discovering where he's hiding and there's risk in trying to bring him in. Many might try to bring in the bad guy. But the first one to haul him in gets the bounty.

from the moment the bounty hunter catches his man, until the moment he is either paid or has established to the authorities that he deserves to get paid, the bounty hunter holds possession of the bad guy or chances losing his reward.

Once the reward is promised or paid, the bad guy is locked up and the public as a whole benefits from his being off the streets.

In either case, the bounty or the copyrights awarded to the person collecting on them should be based on the work put into the job, not on the value of the result. Yes, really good authors should be able to make more money than really horrible ones, but that's a function of the sales between the author and the readers.

The actual bounty offered by the public to writers and inventors is a set of exclusive rights to their works for a set period of time. Those rights and their duration should be set by the public to be just high enough that writers and inventors take a chance at collecting the reward.

In the absolute extreme case, no bounty for writing a book should exceed the average lifespan, since no writer will ever put that much time and effort into their book that it would take two lifespans to pay it back. It is physically impossible. Life plus 70 years for a 20 year old author translates into roughly two lifetimes of bounty on something they, at most, put 20 years of work into.

40 years fixed should be enough to cover all but the most masochistic and slowest authors. Anyone who puts more than 40 years of full time work into creating a book probably isn't in it for the money anyway.

so I had some time to ponder it.

The definition "being public knowledge as opposed to being secret" is a test that can be applied to determine whether a thing is public domain or not. That test is used in determining whether a patent being applied for is original or whether it contains prior art and doesn't actually deserve patent protection. This test is also used in determining whether a Trade Secret can be enforced or not. If someone independently invents what someone else is holding as a Trade Secret, the invention can no longer be enforced as a trade secret.

But the test is only good for determining a subset of all of what is public domain.

Public Domain is first and formost a thing with no restrictions on it. Whether a thing is known by all, known by none, or discovered long ago and since forgotten by everyone, is not the grit of what it means to be Public Domain. Public domain is not completely defined by "everyone knows ___", but it is completely defined by "everyone can ___"

Greg London:

A third-rate bounty hunter, if lucky, could stumble upon and capture the world's most wanted man, and reap a huge reward, right?

So: could a third-rate fiction author, if lucky, stumble upon and capture, from your notion of a public domain of all possible works, (a.k.a. Jorge Luis Borges' "Library of Bablylon") the greatest novel in history, and win Pulitzer and Nobel prizes as a result?

It's true that genius-level creators have expressed the feeling that the work was "just out there, floating around" and was caught on the wing, rather than written. Mozart claimed to have grabbed complete string quartets in an instant. There's a child prodigy composer, profiled in "60 minutes," who hears 1 or 2 tracks of audio almost all the time, which he transcribes, and the world calls it composition.

But that is not the norm, and very much confuses "inspiration" with the normal work of painstaking craftsmanship in writing.

The mapping of all possible ideas was proposed and begun decades ago by famous astronomer Fritz Zwicky. He called the space of all possible ideas the "ideocosm." He worked out systematic methodologies to fill in missing parts of that space. He was eccentric, undervalued, but a genius who'd fought his way up from self-taught technician to Professor at prestigious Caltech. He influenced, among others, the late Herman Kahn, the #1 civian advisor to US defense policy in the Cold War.

However, very few people would accept the analogy that Public Domain = ideocosm, any more than they would accept the bounty hunter analogy that you enjoy.

Jonathan,

How did "third rate" get into the discussion?

I would not recommend some hick with a pitchfork pack up and head over to Afghanistan in an attempt ot collect the gargantuan bounty that is on Osama Bin Laden's head. But then some bad guys just can't be caught no matter how big the bounty.

Bounties should encourage people who excel at getting bad buys to make a living at it. Former police officers. Former bad guys. Former covert ops. These folks hear about a bounty, decide to take a shot at it, find they like the work, and start making a living at doing it.

The Farmer-Bobs of the world might get lucky on occaision and get the drop on some bad guy who decided to sleep in his barn. But the point is that bounties allow the establishment of a profession. Successful bounty hunters are rewarded, idiots with pitchforks generally get themselves killed. It naturally creates a system of rewards for success.

Copyright as a bounty is the same thing. It should allow the profession of writing various works. People who know what they are doing should be able to succeed at it. Poeple who can't even spell will generally get themselves "killed" from the profession of writing.

Which isn't to say you won't see one-hit-wonders, and horrible movies that make huge amounts of money. The only difference is that the bounty for copyright is the rights given up by the public and for how long. The money the writer makes is a function of how the market likes his work.

By giving up the right to treat a writer's work as public domain for 40 years, the writer has his chance to sell his work on an open market. If he can't make back the time and energy he put into his book after 40 years, he's a farmer bob with a pitchfork, a genius who doesn't write what the public wants to buy, or a "misunderstood artist".

Neither bounties for bad guys or copyrights for authors are perfect systems. But they do create a system that encourages the best to try their hand at something while the system also weeds out your "third rate" idiots.

Greg:

The fact that you have to come up with a story for your frame that makes the bounty hunter the good guy just proves it doesn't work as a frame. It's just like the way the book you quote says Democrats have to use long explanations to get their points across - because there's no short-cut frame in place.

All the prior times you've posited frames, you yourself have emphasized they should be one word, one sentence, and rejected as unsuitable all attempts to make a frame that required more explanation. Bounty hunter requires a long explanation to work. It is a logical description. But not an intuitive one.

Enough. Let's try another metaphor:

A man in his twenties develops the perfect widget. This attracts an investor - the young man goes into business.

He then spends the next 55 years (He's self-employed, and chooses not to retire) maintining his business - doing the day to day work of the office, paying people to do what he cannot do himself, such as marketing and contract negotiations, the physical assembly of the product. Periodically he releases a new item to promote so that his whole business is not dependant on one widget. Most succeed - some flop. But overall, the business and his effort pay off. He doesn't make a fortune, but he makes enough to keep his family.

Then he passes away. Maybe the business passes to his son/daughter who's been learning the job with him. Maybe it passes to a trusted VP. Maybe this person sells it off.

But the whole business is still based upon the original perfect widget, and its follow-up inventions.

Question: how long does the business stay with his heirs? How long do they benefit?

Now, let's make a sentence by sentence comparison:

A man in his twenties develops the perfect widget. This attracts an investor - the young man goes into business.

A man in his twenties develops a very good book. This atracts a publisher - the book is released and the young man starts making royalties.

He then spends the next 55 years (He's self-employed, and chooses not to retire) maintining his business - doing the day to day work of the office, paying people to do what he cannot do himself, such as marketing and contract negotiations, the physical assembly of the product.

He then spends the next 55 years doing book tours and signings, and writing a little every day, while his publisher does the marketing and the physical assembly of his mauscripts into books, and his agent negotiates better contracts for him.

Periodically he releases a new item to promote so that his whole business is not dependant on one widget. Most succeed - some flop. But overall, the business and his effort pay off. He doesn't make a fortune, but he makes enough to keep his family.

Periodically, his constant daily grind of pages produces another finished book - as the standard writing advice goes, the way to keep a book in print is to write the next one (Thus, the writing of one book is not just the promotion of that book but also the maintenance of the old ones - thus the old book is not actually done with at the point of being published). They're not all perfect, but he has a fan base, and his family eats.

Then he passes away. Maybe the business passes to his son/daughter who's been learning the job with him. Maybe it passes to a trusted VP. Maybe this person sells it off.

Be they family or trusted writing associate or other, most heirs who make a *significant* amount off the work of their predecessor do one of three things (Let's not debate quality currently - monetary success only):

A) They finish the packaging up of the last few finished works (In the case of a handful of especially popular writers, the unfinished work, as well), do editing and finalizing of the manuscripts according to the wishes of their predecessor. (Please don't try to tell me editing and assembling sundry not-necessarily ordered papers isn't work worth some reward).

B) They write their own books, sometimes in the shared universe of their predecessor. Not only does this boost their own career, it keeps those older books from going out of print (The "New book brings sales of the old books up" does seem to hold up -- if the setting or main character is the product more than the author's name -- and thus actually validates this as an excuse for getting some royalties from the old ones.)

C) They're a children's hospital and the "good works" they do by dint of what they are causes fewer people to question their right to make money off a children's book. ;)

But the whole business is still based upon the original perfect widget, and its follow-up inventions.

I agree that any heir not willing to put effort in should not benefit for long (No longer, say, than it would take for a non-business savvy son to sell his dad's widget-making business - and probably with less monetary reward).

However: A few odd things about public domain:

I keep hearing about people saying "Anyone could do anything to ***my*** story!! They could take my anme off it."

-HAve we really forgotten who wrote pride and Prejudice just because it's public domain?

- While people have written books based on Sherlock Holmes and other characters - some decidedly not what the original author would have meant. These are usually rather obvious if so (does anyone really think Arthur Conan Doyle would have approved of his characters' part in the League of Extraordinary Gentlemen? And further, does this prevent you from liking what's done with it - or *add* to the fun?).

However, these new stories still usually credit Arthur Conan Doyle for his part (or the annotators do -- one way or another, the readers will know or find out. But the only ways the actual original books have Usually been altered is occasionally to abridge them for young audiences or adult learning (Things done with non public domain books as well), or to create a new edition that is less costly, or more prettily packaged.** The Hound of the Baskervilles is still Arthur Conan Doyle's story, as he wrote it.

** The big exception is when there are changes, usually editorial corrections and sometimes done by the author, between different publishers' editions. And this happened with Tolkien, who is not public domain, even between authorized versions. I'm sure there ahve been occasional butcher jobs, but my point is they are the vast exception, not the rule.

Lenora,

Lakoff says that progressive frames don't exist. that progressives need to invest time and money and effort to create the frame, get it out into the world and into the midn of the population, and then and only then can the progressive politician invoke the short slogan "separation of church and state" and have all the baggage that comes along with it so he doesn't have to explain it.

The frame is not the slogan. It is the worldview that comes along with it when you say the slogan. For progressives, neither the slogans nor the worldviews have been established in the world. So, when a politician wants to invoke the frame, he can't just give the slogan, he has to explain the worldview.

The frame is the thing that people generate in their heads as they talk about the issue, put the model into their minds, see the way it works, where it leads, adn how it pans out. It is a worldview that is developed collectively by the public as they exercise their right to free speech, to dissent, and to peacably assemble.

Once established, the politician can invoke it with a slogan. Until it is established, it has to be explained, pushed, argued for, defended, or perish.

I'll drop the bounty hunter frame if someone proposes another worldview that better models the transaction. Otherwise, I'll keep working on that story.

---

As far as your story goes about the guy who invents a widget, the problem is that it isn't a model that allows you simulate and predict what would happen if . Your story describes a series of events.

I'm looking for a model that shows the cause of those events and who is responsible for them. A sufficient model should answer the question of "how much is enough" for rights and terms for copyright and patent.

The bounty hunter model answers that question by presenting the transaction as a cake-cutting algorithm of sorts. The public cuts the cake, and if it's big enough, someone might take it. The public offers a set of rights and terms for writers and inventors, and if a writer or inventor thinks they can make a profit with those rights and terms, then they write and invent.

Having a model where writers get to cut the cake and take the piece they want is an unfair algorithm. Fair people might cut fairly. But an unfair writer might take advantage of the situation.

Disney pushing congress to extend terms every time Steamboat Mickey is about to go public domain is letting Disney cut the cake and pick which piece they get to take. It isn't fair unless all the players are fair.

The bounty hunter algorithm works even if some of the players would otherwise act unfairly.

The bounty system is fair even if the players are not.

Disney and Microsoft and MPAA and RIAA are all unfair players with corporate self interests that push them to keep wanting a bigger piece of the cake. The algorithm must withstand this pressure and remain fair, or the algorithm is effectively useless.

The public sets the price/bounty. writers either decide they can write for that kind of money or not.

Of course, even that system can be broken if all the writers form a CARTEL working as a total monopoly, rejecting a fair price until the public sets it far higher than would be needed if competition were allowed. But at least the algorithm is better than simply letting Disney cut the cake and pick which piece they want.

Actually, the point was to touch on something in your modfel that also makes me uncomfortable: Your bounty hunter comparison assumes all work is done the moment the book is turned in.

My point is, most authors see the whole of their career as a single extended process that never ends, that is worked on every day (or near enough) like every other career.

Thus the argument for copyright of all an author's works to last a length of time based on their lifetime, not a finite time per work. So long as they are doing the work of promoting their whole oeuvre (or paying someone to do the suitable work for them) they are still putting effort into the work, and should reap the benefits.

This posits back to a version of Charlie Stross's theory - life plus ten, renewable by the heirs.

But with one difference: the heirs can renew *only* if they can prove not only interest in the copyright but effort involved in maintaining it - the preparation and editing of posthumous works, personal creation of derivative work (Fiction or non) that actually sells* -- something above and beyond merely selling the rights for a re-release, or a film, or whatnot. **

Not that there's anything wrong with salesman savvy, either (for the original author, rather than the heirs, I'd consider it essential), but that condition puts paid to Disney's sales cycles being used to indicate continued effort.

* Derivative work that gets left in a drawer does not count. I'd be tempted to say proof of publishers' rejections would count for one ten-year renewal and no more, but that might be getting too bureaucratic.

** And Yes, I see the complication you get after two generations of writers have been working in the same universe in order to maintain copyright if a third heir tries...

> Your bounty hunter comparison assumes all
> work is done the moment the book is turned in.

40 years was picked in part because it should cover most cycles of a work through all the different media. a number of years to write and publish the book. a few years for it to get popular. A couple years to make a movie. a couple years on DVD. A few years to make it to TV.

Heirs don't need special priviledges. If the original author dies before the 40 years, that work goes to the heir. If the heir wants to put a bunch of work into his father's book to turn it into a movie, the 40 year copyright for the movie starts when the movie is published. So, the heir has 40 years to collect on their own contribution to the cycle.

If someone puts in significant contributions to a work, it is really up to them to make sure they're listed as co-authors and therefore co-owners in the copyright of the work. If they have a smaller stake in the work, the author could just pay them a salary.

Same issue when a bounty-hunter team goes after one bad guy. Some might get in on the job for a percentage fo teh reward. Some might opt for a simple per-diem.

40 years for each derivation of the work starting from the point the version of the work in question is published ought to cover the expenses for each creation.

book: 2000-2040
movie: 2005-2045
TV series: 2010-2050

and so on.

Which doesn't actually address the central point:

"most authors see the whole of their career as a single extended process that never ends, that is worked on every day (or near enough) like every other career."

Is it a valid way to look at a creative effort? I know that so far, while I've had very little published at all, the publication dates have been more minor peaks in an ongoing process, rather than distinct and discrete events (Good lord - without hunting out my old saved to CD-R files of my e-mail from a prior computer, I couldn't even tell you when Dagger and Key was released).

This makes it harder for me to look at the process of giving each work a separate copyright date from the others as anything but an excess of bureaucracy and a headache. It's thus easier for me to think in terms of my whole lifetime and my whole career.

As for the rest:
The rest is me tossing out scattershot ideas, because they seem like possibilities or at least alternates, and I want to see if anyone else can or will run with them. I'm not attached to any of them. I want something noticeably LESS than life plus seventy. I think Life plus fifty is still oddly long. I want something more than the fourteen - renewable to 28 someone mentioned above. I prefer the idea of something "lifetime-plus" based, and strongly dislike the "lifetime and not a day past" version (Life plus twenty, flat, no renewal, sounds good) but I would shrug and accept almost every non-extreme version if it was put into play.

Some of the suggestions seem arbitrary,m though, and that's part of what makes me challenge them. If you must have a set time per work rather than per author, why not fifty years instead of this rather arbitrary 40? Why not 36? You say it seems like long enough for a work to go through various incarnations -- yet is there documentation for this, or is it just a gut feeling? And why the focus on movie rights rather than ongoing royalites?

Also, I *can* really understand the arguments against heirs earning off the work of their predecessors. However, if the author is Still alive when it comes around, why should they not benefit from a 50th anniversary edition of a book that managed to stay in print 50 years? That's pretty much a miracle achievement (I'm *sure* it will never happen to anything of mine), and anyone so lucky should probably get some reward for it besides seeing a beautiful, illustrated, embossed, leatherbound (and expensive) edition of their hard work go out and earn the publisher a good bit, but the author not a penny.

(I'm NOT saying every book sold which doesn't bring in royalties is bad... review copies and used books are both good things!)

I'd like to apologize now for the sheer number of typos I left in today's messages....

> why not fifty years instead of this
> rather arbitrary 40

It's arbitrary the way the price you might offer a used car salesman an initial price for a vehicle. Sure, you make up the number by some internal rule (25% below sticker price, and let him get me up to 20%). But it ceases to become arbitrary as soon as the car salesman agrees.

You'd be a moron to simply offer sticker price for a vehicle.

I think 40 years is a long enough stretch that a lot of people would be willing to write. Quite a few of them won't live another 40 years, so they won't be too attached to anything above 40 years. Quite a few of them will outlive 40 years, but will figure they'll make more than enough on the time/effort they put into their work.

Greg said: "My definition is a thing with no legal restrictions of ownership upon it, regardless of whether the thing is known or not."

The two criteria, however, are not unrelated.

My definition is trying to define what public domain would mean if there were no legal restrictions at all--if there was no legal definition of public domain to begin with. Perhaps you are right that public domain isn't the right word in this case, since public domain is a legal concept. How about publicly-available ideas? It's a bit clunky, but it will have to do.

Your definition uses only a single criteria: "Is the general public legally allowed to use/know this?" (Public domain... is completely defined by "everyone can ___") Because your definition doesn't include a criteria like "Has this idea ever been thought up?" or "Can the general public know of this?" you inadvertently include a great deal more than you probably planned on. This gets you into problems.

My definition is not quite so bold. First, I limit my claims to ideas which can be proven to exist, i.e. things that have been created. Then I ask, "Can the general public use/know this idea?" If the answer is yes (the idea was shared with the public at large), then, by my definition, it is publicly available. If no (the idea was never shared with the public for whatever reason), then I do not consider the idea publicly available.

The test is a bit fuzzy, I admit, because the definition of "the general public" is hard to pin down. For convenience's sake, I have been treating the general public as anyone other than the creator, but obviously it would have to be a much more widespread than two people to be called publicly available.

The point is, however, that unless the idea in question is publicly available, whether it is public domain or not is utterly irrelevant. To take your ancient buried scroll as an example, whether or not it is public domain is a meaningless concept until it is discovered. Human laws do not extend infinitely; they only go as far out as they can be enforced. The limit of human knowledge is the limit of human law.

Thus, to claim that "Whether a thing is known by all, known by none, or discovered long ago and since forgotten by everyone, is not the grit of what it means to be Public Domain." is to abandon an understanding of public domain as a legal concept. And such an understanding is what your argument is based on. See now why my definition is important?

> My definition is not quite so bold. First,
> I limit my claims to ideas which can be proven
> to exist, i.e. things that have been created.

But by picking the starting point where the thing has already been created, two things happen: (1) you ignore how the idea relates to people before it is discovered (no restrictions, anyone cna discover it), and (2) you start from a point where the idea is the sole possession of one person, which frames anything that takes the idea from that person as "confiscating" it.

Thomas Edison had a lot of competition for being the first to invent a working lightbulb. If he hadn't invented it first, someone else would have. Before the idea is created in actuality, it is something that the public relates to without any restrictions.

If the first person to design a working light bulb had decided to publish his work, he might be able to prevent himself or anyone else from ever patenting his design, keeping the design unrestricted.

In that example, the design of said light bulb is unrestricted before and after its creation. Anyone could build such a lightbulb without fear of a patent infringement lawsuit.

It is unrestricted whether or not it is known. And it is the unrestrictedness of it that actually encourages the Edisons of the world to compete with each other to be the first to create one in actuality.

The unknown-edness of the design does not affect whether or not it is restricted.

Now, whether a thing is known by the public or not is a test that can be applied to a patent application to decide if the application deserves approval. If someone attempts to patent an idea that the public already knew, then the patent shouldn't be approved. If someone attempts to enforce Trade Secret status on something that the public has since independently developed on its own, then Trade Secret status goes away.

That the Public knows a thing can be used as a test to prevent or take away the thing from being treated as exclusive property of one person.

But what the public at large already knows is a subset of what has no restrictions on it.

I'm talking about Public Access. A thing that anyone can walk on, drive over, etc, without restrictions. And it's possible to have Public Access to a place that has never been discovered.

"But by picking the starting point where the thing has already been created, two things happen: (1) you ignore how the idea relates to people before it is discovered (no restrictions, anyone cna discover it), and (2) you start from a point where the idea is the sole possession of one person, which frames anything that takes the idea from that person as "confiscating" it."

While I quibble with your framing of sharing ideas as "confiscation," those are indeed the two natural results of this argument--a point which I've been repeatedly mentioning for quite a while now.

"Thomas Edison had a lot of competition for being the first to invent a working lightbulb. If he hadn't invented it first, someone else would have.

Arguable. But only because even before it was created in reality, the idea of an idea of a working lightbulb was common currency in popular culture. As for the actual idea of a working lightbulb, i.e. the know-how of making one, no one related to that idea at all, because it did not exist. Edison, as the person who created that idea, that know-how; as the original sole possesser, accrued certain benefits for his efforts.

"Before the idea is created in actuality, it is something that the public relates to without any restrictions."

--except for the restriction that they don't relate to it at all because it doesn't exist. Any individual may create the idea, bring it into reality, but prior to its existence, no one can have any conceivable relationship with something that has no existence. Nothing real can relate to something unreal.

Now that I think of it, that is one of the biggest problems with your bounty hunter metaphor--you presume the pre-discovery existence of the story/idea/criminal. But creation doesn't work that way--prior to the idea being created, it doesn't have any real existence.

See this web page to get the AOB (Appellant's Opening Brief) of the very important suit Kahle v. Ashcroft. That suit challenged the constitutionality of switching from an opt-in copyright system (as it was for almost 200 years in the USA) to the current opt-out system, where every "doodle" on a piece of paper is copyrighted for 95 years. Honest: they use the word "doodle" in their appeal...

The good folks at Stanford Center for Internet and Society have helped file the appeal of Kahle v. Ashcroft.

This suit is about "orphan works", or works that are so out of print that often the publisher can not be found, but under the new copyright laws, these works are still under copyright.

This suit seeks to affirm that libraries in the digital world can have out-of-print works on their shelves, just as we had on the shelves of the libraries we grew up with.

Lets hope sanity prevails and we protect our libraries.

-- brewster

> you presume the pre-discovery existence of the
> story/idea/criminal. But creation doesn't work
> that way--prior to the idea being created, it
> doesn't have any real existence.

With the bounty hunter metaphor, the goal of capturing the bad guy might seem unfairly specific when compared to a great novel or an amazing new invention. But you're focusing on the specifics of one bad guy, one invention, one novel, when the metaphor for bounty hunters is really about "promoting justice" and the purpose of copyright and patent law is to "promote progress".

You don't know what 'promoting justice' is going to look like any more than you know how "promoting progress of arts and science" will look like. Nothing is presumed to exist at that point.

As trouble making kids grow up to commit misdemeanors, then turn into repeat offenders, before finally committing a felony and getting the attention of bounty hunters, "promoting justice" didn't know that the kid was going to become an outlaw, but once he crosses that line, he gets a bounty on his head.

It's a incremental thing that applies to science and arts as well.

The constitution calls it promoting progress

The founding fathers didn't know about light bulbs at the time. No one did. But as science progressed to the point where the idea of a light bulb got the attention of some inventors, they all put their efforts into making one in existence.

I don't presume the existence of a bad guy, any more than the founding fathers presumed the existence of a light bulb.

But they did presume a concept of "promoting progress" and designed a system that would reward the people who were at the bleeding edge of the arts and sciences, a bounty system for the bounty hunters in the wild west to promote justice in an otherwise lawless frontier.

Righting Copyright: Fair Use and 'Digital Environmentism'"
by Robert S. Boynton
Bookforum
Feb/Mar 2005

"Who owns the words you're reading right now? if you're holding a copy of Bookforum in your hands, the law permits you to lend or sell it to whomever you like. If you're reading this article on the Internet, you are allowed to link to it, but are prohibited from duplicating it on your web site or chat room without permission. You are free to make copies of it for teaching purposes, but aren't allowed to sell those copies to your students without permission. A critic who misrepresents my ideas or uses some of my words to attack me in an article of his own is well within his rights to do so. But were I to fashion these pages into a work of collage art and sell it, my customer would be breaking the law if he altered it. Furthermore, were I to set these words to music, I'd receive royalties when it was played on the radio; the band performing it, however, would get nothing. In the end, the copyright to these words belongs to me, and I've given Bookforum the right to publish them. But even my ownership is limited. Unlike a house, which I may pass on to my heirs (and they to theirs), my copyright will expire seventy years after my death, and these words will enter the public domain, where anyone is free to use them. But those doodles you're drawing in the margins of this page? Have no fear: They belong entirely to you...."

I still don't like the frame, but here's some interesting support for Greg's metaphor. I found it in Yochai Benkler's fascinating paper, "Free as the Air to Common Use."

In 1841, Lord Macaulay described copyright as “a tax on readers for the purpose of giving a bounty to
writers.”

This site has gone to hell all this data was really useless for myself and my classmates and your theory was of no help at all i i think thAT YOU SHOULD KNOW ABOUT STUFF BEFORE YOU START TALKING ABOUT IT AIMLESSLY YOU POOFTER

You know, they used to say things like "Wonderful site! Maybe you'd like to see mine!"

Though we should all reflect with pleasure on how useless our theory was to infantile Tory swots.

John M. Ford:

You know, they used to say things like "Wonderful site! Maybe you'd like to see mine!"

Or, equivalently, "my list of personal idiosyncracies and favored trivia is longer than yours. Much longer than yours! Let me whip out its URL and expose it to you..."

Any thoughts on the Oscars just presented? I've always found your insights on The Industry to be extraordinarily illuminating!

Mike, is that really comment spam? (I'm assuming you're referring to the childish whining of "David.") The link is to an email address that looks like a highschool domain.

And in fact I suspect it's actually a joke, since no one could be quite so typical of useless adolescent losers without actively trying. And the caps lock getting stuck half way through is particularly silly.

Xopher, I suppose it's not spam in the strict sense of "robotic* mass imbecility." Because of its sheer irrelevancy -- what "data?" what "theory?" which "poofter**?" -- my guess was (and still is) that the twit was messaging down randomly selected links, in the same way that twits of an earlier generation dialed random phone numbers and offered their deep understanding of life, the universe, and canned princes to whoever answered.

*Nothing against robots. They only send spam because it's a Second Law thing.
**Is there anyplace that Gannon bleepwad hasn't been?

Actually, the caps lock getting stuck halfway through makes perfefct sense, given that it the first letter affected by it was an "a": On those thankfully rare occasions when my suboptimal left-hand positioning on the home row bites me, it frequently does so by causing me to hit both the "CAPS LOCK" and 'a' keys at more or less the same time, leading to either a few capitalized letters following an 'a', or a few capitalized letters, the first of which is an 'A'.

On the other hand, I'm pretty sure that I would have noticed my error upon hitting "PREVIEW".

Ray: that was my point. You can't POST here without previewing...of course, there are some people with such contempt for the language that they don't care at all. Adolescent punks being high on the list.

By the same token, the type of person who would leave that sort of message is exactly the type of person who would either pay no attention to the preview, or notice the problem and decide that fixing it wasn't worth the effort.